Himachal Pradesh High Court
Sheela Devi vs Indu Bala And Another on 12 April, 2018
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.: 02 of 2018.
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Decided on: 05.04.2018.
Sheela Devi ....Petitioner.
Versus
Indu Bala and another ...Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No
For the petitioner : Mr. Dheeraj K.Vashisht,
r Advocate.
For the respondents : Mr. Ajay Sahrma, Advocate.
Ajay Mohan Goel, Judge (Oral)
By way of this petition filed under Article 227 of the Constitution of India, the petitioner has challenged order dated 07.11.2017, passed by the Court of learned Senior Civil Judge, Court No. I, Amb, District Una, in a Civil Miscellaneous Application under Section 73 of the Indian Evidence Act, filed in Civil Suit No. RBT 317/08/10, for calling record from GRR Judicial, Una.
2. Brief facts necessary for adjudication of the present petition are as under:-
::: Downloaded on - 13/04/2018 23:28:38 :::HCHPPresent petitioner/plaintiff (hereinafter referred to as 'plaintiff') has filed a suit for declaration against the .
respondents/defendants to the effect that she is exclusive owner in possession of the suit land measuring 711-91 square decimeters being 1/3rd share of land measuring 2135-75 square decimeters, comprised in Khewat No. 8, Khatauni No. 10 and Khasra No. 4, situated in Up Mohal Ram Nagar, Mouja Gagret, Tehsil Amb, District Una, HP (hereinafter referred to as 'suit land') and that the sale deed dated 14.2.2007 alleged to have been executed by plaintiff in favour of Naresh Kumar is illegal, null and void and is a result of fraud, misrepresentation and coercion, and also for a consequential relief of permanent injunction restraining the defendant from getting mutation in their favour pursuant to sale deed dated 14.2.2007. As per plaintiff, she is an old illiterate widow who had three sons. Vendee Naresh Kumar was her eldest son.
3. During the pendency of the suit, plaintiff filed an application under Section 73 of the Indian Evidence Act for calling record from GRR Judicial, Una regarding case titled State versus Narinder Kumar, in which the following prayer was made:-
::: Downloaded on - 13/04/2018 23:28:38 :::HCHP"That it is therefore prayed that the session case file titled as "State V/S Narinder Kumar etc" may be summoned and the Deed writer Malkiat Chand .
may be summoned to produce his register dated 14- 02-2007 and both the writing may please be send to the hand writing expert i.e. to the scientific and forensic laboratory H.P. Junga for opinion of expert in the interest of justice."
4. The contentions raised in the application were that sale deed, subject matter of the civil suit, was scribed by Naresh Kumar In connivance with Deed Writer and witnesses and he had also entered the summary of sale deed in his own hand in the documents and in order to ascertain the said fact, it was necessary that the record mentioned in the application be summoned to ascertain the factum of Naresh Kumar having made those entries in the register of sale deed.
5. Said application was opposed by the defendants.
According to the defendants, sale deed Ext. DW1/A had been drafted at the instance of plaintiff and she had also admitted her signatures on the sale deed. In this view of the matter, the stand of the defendants was that even if certain entries were got made by Deed Writer from Naresh Kumar, even then, the same did not make any difference as Naresh Kumar was working as Stamp Vendor and on the direction and dictation ::: Downloaded on - 13/04/2018 23:28:38 :::HCHP of Deed Writer Malkiat Chand he had written a number of deeds.
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6. Learned trial Court has dismissed the said application by holding that as the plaintiff had admitted her signatures as well as her photograph on the sale deed and she could not explain as to how her photograph was clicked with vendee and why she had put her signatures on the sale deed and further, as the factum of certain entries having been made by Naresh Kumar in the register of Deed Writer Malkiat Chand was not disputed by the defendants, the application was mis-conceived. Learned trial Court also held that the case was fixed for arguments since the year 2014 and application under Section 73 of the Indian Evidence Act was filed on 28.9.2016 i.e. after more than two years which demonstrated that said application was filed only to delay the matter. On these reasonings, the application was dismissed by the learned trial Court.
7. Feeling aggrieved, the plaintiff filed the present petition.
8. I have heard learned Counsel for the parties and gone through the impugned order as well as the material placed on record by the respective parties.
::: Downloaded on - 13/04/2018 23:28:38 :::HCHP9. Section 73 of the Indian Evidence Act deals with comparison of signatures, writing or seals with others .
admitted or proved. The reason given as to why the application was filed under Section 73 of the Indian Evidence Act by the plaintiff before that leaned trial Court was that she wanted to prove before the learned trial Court that there were certain entries made in the register of Deed Writer by Naresh Kumar and this could be proved by comparing the same with already admitted hand writing of Naresh Kumar.
10. Taking into consideration the fact that the factum of certain entries having been made in the hand of Naresh Kumar in the register of Deed Writer was not disputed by defendants as Naresh Kumar was working with said Deed Writer, I do not find any infirmity with the order passed by the learned trial Court. This is for the reason that learned trial Court has proceeded with the assumption that the writing in issue is that of Naresh Kumar. Learned trial Court has further held that the sale deed in dispute not only contained the signatures of the plaintiff but her photograph with the vendee was also there on the same and plaintiff had failed to explain as to how her photograph and signatures were there on the sale deed if the said document had not ::: Downloaded on - 13/04/2018 23:28:38 :::HCHP been actually executed by her, as alleged. It is also a matter of record that the case was fixed for arguments since the year .
2014 but plaintiff did not address arguments and the obviously in order to linger on the case filed such application on 28.09.2016. Why the application could not be filed earlier also could not be explained by learned Counsel for the petitioner during the course of arguments. Therefore, the inference drawn by the learned trial Court that filing of the application was just a tactic to delay the adjudication of the civil suit is well reasoned and this Court concurs with the same. In my considered view, the order passed by the learned trial Court is a well reasoned order and the findings arrived at by the learned trial Court are borne out from the records of the case and the same do not call for any interference.
In view of above observations, as there is no merit in the present petition, the same is dismissed accordingly.
Pending miscellaneous application(s), if any, also stand disposed of. No order as to costs.
(Ajay Mohan Goel) Judge April 05, 2018.
(narender) ::: Downloaded on - 13/04/2018 23:28:38 :::HCHP