Rajasthan High Court - Jaipur
Suwa Lal S/O Harphool vs Laxman S/O Tota Ram on 22 April, 2022
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 22576/2018
1. Suwa Lal S/o Harphool, R/o Mohalla Lal Diggi, Alwar -
Deceased Through Legal Heirs
1/1. Ramji Lal S/o Suwa Lal,
1/2. Genda Lal S/o Suwa Lal,
1/3. Kishor S/o Suwa Lal,
1/4. Madan S/o Suwa Lal, R/o Lal Diggi, Alwar-Deceased
Through Legal Heirs
1/4/1 Soma Devi W/o Late Madan Lal,
1/4/2 Kumari Neeta D/o Madan Lal Saini,
1/4/3 Kumari Bhauti D/o Madan Lal,
1/4/4 Kumari Antu D/o Madan Lal Saini,
1/4/5 Kumari Jyoti D/o Madan Lal, Minor Through Their Natural
Guardian Mother Mst. Soma Devi Mother Herself Legal
Heir And In Possession Of Property Of Deceased Madan
Lal Saini
1/5 Babu Lal S/o Suwa Lal, R/o Mohalla Lal Diggi, Alwar
1/6. Sampati D/o Suwa Lal, Wife Of Sohan Lal, R/o Baniya Ka
Bag, Alwar ----Petitioners
Versus
1. Laxman S/o Tota Ram, R/o Lal Diggi, Alwar Through
General Power Of Attorney Shri Hari Lal
2. Hari Lal Son Of Bhore Lal, R/o Lal Diggi, Alwar
----Respondents
For Petitioner(s) : Mr. Jinesh Jain, Adv.
For Respondent(s) : Mr. Bipin Gupta, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
22/04/2022
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(2 of 6) [CW-22576/2018]
This writ petition has been filed by the petitioners-
defendants, challenging order dated 18.08.2018, wherein
applications filed by non-petitioners-plaintiffs under Order 16 Rule 6 CPC and under Section 45 of the Indian Evidence Act, 1872 have been allowed.
Learned counsel for the petitioners submitted that the suit filed by the plaintiffs-non petitioners for specific performance of contract was dismissed by judgment and decree dated 19.02.2011.
Learned counsel for the petitioner submitted that the specific issue was framed by the Civil Court in respect of the alleged agreement to sell dated 23.08.1980.
Learned counsel for the petitioners submitted that the said issue was decided in favour of the present petitioners as no contemporary evidence was led by the plaintiffs to prove that agreement to sell was executed.
Learned counsel for the petitioners further submitted that the Civil Court while recording the finding on issue No.1 and issue No.2 clearly found that no application was filed to lead evidence on behalf of the plaintiffs nor any prayer was made to have expert opinion from Forensic Science Laboratory (FSL) or any other expert to compare the thumb impression said to be put by defendant Suwa Lal-deceased.
Learned counsel for the petitioners submitted that appeal was pending before the Appellate Court and the Appellate Court in the year 2017, allowed that application filed by the non-petitioners and directed that the expert opinion from Forensic Science Laboratory, may be taken in respect of the documents which are alleged to be executed by late defendant-Suwa lal. (Downloaded on 26/04/2022 at 09:35:15 PM)
(3 of 6) [CW-22576/2018] Learned counsel for the petitioners further submitted that the Appellate Court has permitted to fill the lacuna at the appellate stage and the same cannot be done. Learned counsel for the petitioners further submitted that the Andhra Pradesh High Court in the case of Smt. Renu Devi Kedia Vs. Smt. Seetha Devi, AIR 2005 Andhra Pradesh 180, has considered the similar issue and has held that the expert opinion cannot be sought after a long gap and as such on the strength of the said judgment, learned counsel for the petitioners submits that pendency of appeal for more than 6 years was a proper ground on which the application filed by the non-petitioners should have been dismissed.
Learned counsel for the petitioners also places reliance on a judgment in the case of Mamatadevi Vs. Vijaykumar Agrawal, reported in AIR 2008 (NOC) 694 (BOM.) Learned counsel-Mr. Bipin Gupta appearing for the respondents submitted that the application filed by the non- petitioners, was not only under Order 16 Rule 6 CPC but same was also filed under Section 107 and 151 CPC.
Learned counsel for the respondents submitted that as per power given to the Appellate Court under Section 107 of CPC, the Appellate Court has same power and can also take the additional evidence or such other evidence, which is required while deciding the appeal.
Learned counsel for the respondents submitted that the Appellate Court is fully empowered to take the additional evidence and as such no fault can be found in the impugned order which is assailed by the petitioners.
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(4 of 6) [CW-22576/2018] Learned counsel for the respondents also submitted that the suit has been filed by the non-petitioners and no prejudice will be caused to the petitioners as their suit has been dismissed and if the opinion of expert is taken in respect of disputed documents, no prejudice ultimately will be caused to any party and it will be for the parties to lead other evidence to show that the document was executed or not.
Learned counsel for the respondents places reliance on the judgments reported in (2008) 4 SCC 530-Thiruvengadam Pillai Vs. Navaneethammal & Anr; [2019] 5 MLJ 290- Ramayee Vs. Kasthuri & Ors., decided by Madras High Court and [2020] Supreme (Kar) 737-A. Narayana Vs. Gulabi V Rai, decided by the Karnataka High Court.
I have heard the submissions made by learned counsel for the parties.
This Court finds that the non-petitioners had filed an application under Section 45 of the Indian Evidence Act read with Section 107 and 151 CPC.
The contents of the application specifically mentioned that certain documents were executed by defendant-late Suwalal and such documents were produced in UIT, Alwar. The contents of the application further shows that certified copies of these docuemnts were already in possession of the non-petitioners and as such they had requested the Court to get the thumb impression compared with the documents which were with the UIT and in possession of the non-petitioners.
The submission of learned counsel for the petitioners that no lacuna should be allowed to be filled at the appellate stage, suffice (Downloaded on 26/04/2022 at 09:35:15 PM) (5 of 6) [CW-22576/2018] it to say by this Court that Section 107 CPC gives power to the Appellate Court to take additional evidence or to take any other evidence which is required for deciding the case.
The submission of learned counsel for the petitioners that the belated application filed by the non-petitioners after a gap of about 6 years and as such application should not be entertained, suffice it to say by this Court that the suit of the non-petitioners has been dismissed and if the application is allowed, no prejudice can be caused to the petitioners.
This Court finds that the Civil Court while dismissing the suit has specifically recorded a finding that plaintiffs were not able to move any application to summon the report of an expert with respect to the alleged thumb impressions which have been disputed, the said reason itself was sufficient for the Appellate Court to consider the application filed by the non-petitioners.
This Court finds that no legal error has been committed by the court below while passing the order dated 18.08.2018.
This Court finds that the cost which has been imposed on the non-petitioners of Rs.3,000/- to be paid to the petitioners is insufficient.
This Court considering the entire facts of the case, deems it proper to direct the non-petitioners to pay cost of Rs.25,000/- to the petitioners on the next date of hearing.
Learned counsel for the petitioners at this juncture, submitted that if this Court is not inclined to interfere in the order passed by the court below, at least liberty should be granted to the petitioners to lead evidence in rebuttal. (Downloaded on 26/04/2022 at 09:35:15 PM)
(6 of 6) [CW-22576/2018] This Court finds that if any evidence is allowed to be led by the non-petitioners, the petitioners will have their own right to lead evidence in rebuttal.
Accordingly, the writ petition stands dismissed.
(ASHOK KUMAR GAUR),J Ramesh Vaishnav/86/Bhavnesh Kumawat 76 (Downloaded on 26/04/2022 at 09:35:15 PM) Powered by TCPDF (www.tcpdf.org)