Research › Search › Judgment

Rajasthan High Court · body

2008 DIGILAW 306 (RAJ)

Naveen Kumar v. A. D. J. (F. T. ) No. 2, Bhilwara

2008-01-31

DINESH MAHESHWARI

body2008
JUDGMENT 1. - Having heard learned counsel for the petitioner and having perused the material placed on record, this Court is clearly of opinion that the impugned order dated 17.10.2007 (Annex.14) as passed by the learned trial court allowing the applications moved the plaintiff-respondent permitting him to get the disputed signatures and thumb impressions examined and to produce the experts reports remains unexceptionable and calls for no interference. 2. It appears from the material placed on record that the plaintiff-respondent No.2 has filed a suit for cancellation of a sale document and for recovery of possession and other ancillary reliefs, fundamentally on the submissions that the questioned document dated 23.08.2001, alleged to be a sale deed of the property described in paragraph 2 of the plaint, wherein the plaintiff was shown as vendor and the defendant No.1 as the purchaser, was a fraudulent document. The plaintiff has alleged that he never presented himself before the Sub-Registrar, Bhilwara nor put any signatures nor affixed his thumb-finger impressions nor received any consideration. The plaintiff has also alleged that upon noticing such document he lodged a First Information Report, obtained copies of his thumb impression from Book No.8 maintained by the Sub-Registrar's Office, Bhilwara and got such impression compared with his true thumb impression put before a Notary Public by an expert R.D. Tamhane; and that the expert has stated in his report that the impression as available in the aforesaid Book No.8 does not tally with the impression put before the Notary Public. The defendant-petitioner has denied the plaint allegations, has denied the correctness of such report of the alleged expert, and has raised questions, inter alia, as to why the plaintiff did not get the signatures available on the document compared? The matter has been put to trial after framing of issues by the learned trial court on 08.11.2006 inclusive of the basic issues as to whether the questioned document was not executed by the plaintiff and the same was a fraudulent one. The plaintiff and the said expert R.D. Tamhane have been examined as PW-1 and PW-2 respectively. 3. The matter has been put to trial after framing of issues by the learned trial court on 08.11.2006 inclusive of the basic issues as to whether the questioned document was not executed by the plaintiff and the same was a fraudulent one. The plaintiff and the said expert R.D. Tamhane have been examined as PW-1 and PW-2 respectively. 3. Thereafter, the plaintiff moved an application on 24.09.2007 (Annex.11) with the submissions that the genuineness of the sale document dated 23.08.2001 was the matter in issue; that the original sale deed was in possession of the defendant Naveen Kumar (petitioner) that was placed with the Bank in equitable mortgage and hence the impressions carried on the said document were not available for comparison earlier; that the original sale deed has been produced by the Bank in the court on 17.08.2007; and for the original being on record, the impressions available on the said original document deserve to be got compared with the true impressions of the plaintiff, to be put before the court. The plaintiff prayed for sending of the questioned and admitted thumb impressions for comparison to the Finger Print Bureau, Rajasthan. The petitioner put the application to contention with the submissions, inter alia, that the plaintiff had obtained the report of the expert before filing of the suit and such report has been produced on record and the expert has also been examined. Therefore, the petitioner contended, the plaintiff was not entitled to get the fingerprints examined over again. The plaintiff also seems to have made an application on 08.10.2007 (copy whereof has not been placed on record) as mentioned in the impugned order dated 17.10.2007, with the prayer that the disputed signatures be also got examined from a handwriting expert. 4. The learned trial court, after considering the objections as raised on behalf of the present petitioner, has observed that the original sale deed was earlier not produced before the court and, of course, the original document was brought before the court by the Bank and the plaintiff could have made such prayer earlier but for this minor mistake, it would not be proper to reject the application particularly when the defendant's evidence has not started and he could be compensated by way of costs. The learned trial court also observed that though the plaintiff has already closed his evidence and he would be required to be extended further opportunity of evidence but if the expert would state a report on the basis of the original document, the same would serve the cause of justice and would assist in determination of the matter properly. The learned trial court, in order to avoid unnecessary delay, has directed that instead of sending the documents, the plaintiff would call the expert in the court for taking photographs etc. of the disputed and the admitted signatures and thumb impressions and such expert/experts would file necessary report/s within seven days and they would be produced by the plaintiff on his costs and expenses. The learned trial court has also imposed costs of Rs.1,000/- on the plaintiff, allowing Rs.750/- to the petitioner and has directed other Rs.250/- to be deposited in legal aid. 5. Seeking to challenge the order aforesaid, learned counsel for the petitioner would contend with reference to the statement as made by the plaintiff (PW-1) and as made by the expert (PW-2) that the plaintiff has taken contradictory stand regarding expert's opinion obtained earlier and about the thumb impressions sent to him; that the plaintiff could have asked for any other comparison earlier and the applications now moved cannot be said to be bona fide; and that the learned trial court has erred in observing that there was merely a minor mistake on the part of the plaintiff; that the applications as moved by the plaintiff are nothing but intended to prolong the matter and to seek reopening of the evidence particularly to place another expert's report on record when the earlier expert's report and statements do not make out any case in favour of the plaintiff. The submissions remain bereft of substance. 6. It appears that at the time of filing of the suit, the plaintiff sought an expert's opinion with reference to the copies of the thumb impressions in relation to the questioned document as obtained from the Sub-Registrar's office. The original sale deed was obviously not in possession of the plaintiff and was allegedly placed by the defendant with the Bank in equitable mortgage. The original sale deed was obviously not in possession of the plaintiff and was allegedly placed by the defendant with the Bank in equitable mortgage. With such sale deed having been produced by the Bank before the court and the plaintiff seeking expert's report on the signatures and thumb impression available on the said document, the learned trial court had the jurisdiction to permit such report to be placed before it for proper determination of the questions involved in the matter and the exercise of jurisdiction by the learned trial court cannot be said to be suffering from any illegality so as to warrant interference in writ jurisdiction of this Court. 7. It is to be imbibed that the rules of procedure are ultimately intended to subserve the cause of justice and any procedure adopted by the learned trial court that advances the cause of justice like permitting of further evidence, while seeking answers to the contentious questions, remains within its jurisdiction. It cannot be said that by the procedure adopted by the learned trial court, the petitioner is put to any prejudice for the expert's report now to be obtained and placed before the court would obviously remain subject to scrutiny in accordance with law and then, the court has taken care to award reasonable costs to the petitioner for the delay being caused now. There appears no reason or cause to consider any interference at the instance of the petitioner in this matter.The writ petition fails and is, therefore, rejected. Petition dismissed. *******