Chander Sekhar Alias Bitto v. Ishwar Chander Pathak
2002-09-17
M.M.KUMAR
body2002
DigiLaw.ai
Judgment 1. This revision petition filed under S. 115 of the Code of Civil Procedure, 1908 (for brevity the Code) is directed against the order dated 24-10-2001 passed by the Civil Judge (Senior Division). Ferozepur. The Civil Judge has dismissed the application of the defendant petitioner filed under Ss. 151 and 152 of the Code for getting the signatures of Smt. Mohan Devi compared on the original power of attorney dated 12-7-1991 from the Director Forensic Lab. Science. Punjab, Chandigarh with registered Will dated 11-2-1983 and un-registered Will dated 10-8-1991. The ground for rectification of mistake peladed is that inadvertantly the Civil Judge omitted to send the power of attorney and therefore the mistake be rectified. 2. Brief facts of the case are that plaintiff respondents had filed a Civil Suit No. 164-1 instituted on 21-5-1994/ 15-6-1999 for declaration that the plaintiff respondents are the owner in possession of a house bearing Municipal No. CS 10/20 to the extent of 7/12 share more fully described in the plaint. Further prayer for permanent injunction restraining defendant petitioner and defendant respondent has also made from raising any type of construction on any portion of the property or from alienating the property or part thereof on the basis of oral/ documentary evidence. The application filed earlier for the purposes of comparison of signatures of Mohan Devi with similar prayer has been allowed and the registered and unregistered Wills dated 11-3-1983 and 10-8-1991 were sent for comparison. A copy of the order dated 2-5-2000 has been placed on the record by the learned counsel for the defendant-petitioner which is marked as "A". Another application for comparison of signatures on power of attorney which has resulted into passing of the impugned order has been dismissed by the Civil Judge with the following observations : "The present is a suit for declaration that plaintiffs are owners in possession of 7/12 share of house bearing Municipal No. CS 10/ 20 in dispute and defendant Uma Nandan and Sri Kanth have no title, right or interest therein and for permanent injunction, restraining them from raising construction in any of the portion of the house in dispute. Issues were framed in this case on 20-8-1994 and one of the issue No.4 is whether Smt. Mohan Devi/ deceased had executed an un-registered Will dated 8-10-1991.
Issues were framed in this case on 20-8-1994 and one of the issue No.4 is whether Smt. Mohan Devi/ deceased had executed an un-registered Will dated 8-10-1991. In the General Power of Attorney dated 12-7-1991 executed by Smt. Mohan Devi in favour of Sri Kanth is also on the record. The earlier application dated 7-2-2000 Uma Nandan has prayed for sending the unregistered Will dated 10-8-1991 produced by Ishwar Chander etc. and registered Will dated 11-3-1983 in possession of Uma Nandan for comparison of signatures of Smt. Mohan Devi executant of both the Wills.The report, which has come from the Director and is admissible in evidence reveals that signatures of Smt. Mohan Devi on unregistered Will do not tally with the signatures on the registered Will dated 11-3-1983. This goes to reveal that either of the Will is false and forged document. The evidence have already been led by the parties and both the parties have concluded evidence on 9-6-2001. The present application is a colourable exercise and camouflage to reopen the evidence afresh for which Order dated 11-8-2001 has already been passed by me on the application under Ss. 151/152, CPC which order is on the application for amendment of Order dated 9-6-2001 closing the defence of the defendants by order. The inherent power under S. 151, CPC can only be exercised to do Justice and to correct the proceedings when Court has been misled by one of the parties in passing the order. No appeal has been preferred against the order closing down the evidence by order. The present application is a frivolous one and has only been filed only to delay the decision of the suit and is hereby dismissed." 3. Shri V. K. Jain, learned Senior Counsel appearing for the defendant-petitioner has argued that the Civil Judge has committed a mistake by recording that only registered and unregistered Wills were sent for the purposes of comparison of signatures vide order dated 2-5-2000. According to the learned counsel, the Civil Judge in fact had also ordered that general power of attorney dated 12-7-1991 be also sent for the purposes of verification of signatures and by mistake the same was not sent. Therefore, the learned counsel argued that it is a mere rectification of mistake which should have been effected by the Civil Judge by allowing his application filed under Ss. 151 and 152 of the Code. 4.
Therefore, the learned counsel argued that it is a mere rectification of mistake which should have been effected by the Civil Judge by allowing his application filed under Ss. 151 and 152 of the Code. 4. A perusal of the impugned order as well as the order dated 2-5-2000 does not support the aforementioned submission as it is clear that the Civil Judge has accepted the request of the defendant-petitioner in its order dated 2-5-2000 to send only registered and unregistered Wills for the comparison of signatures. Therefore, the argument is misconceived and is liable to be rejected. The order passed by the Civil Judge does not suffer from any material irregularity or such an Illegality so as to warrant interference of; this Court under S. 115 of the Code. The revision petition is thus liable to be dismissed. For the reasons recorded above, this petition fails and the same is dismissed. Petition dismissed.