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2009 DIGILAW 593 (MP)

Usha Shanna v. Maharaj Kishan Raina

2009-05-04

B.M.GUPTA, DIPAK MISRA

body2009
ORDER Gupta J. -- 1. Feeling aggrieved with an order dated 15.01.2008 passed by 1 the Additional District Judge, Gwalior in Civil Suit No. 2A/06, whereby learned Judge has rejected an application dated 23.10.2007 filed on behalf of the petitioner/plaintiff under section 45 of the Indian Evidence Act requesting therein to permit her to get the disputed signatures of Balasaheb Paradkar examined by a hand writing expert, this petition has been preferred by the petitioner. 2. On perusal of the impugned order, it appears that with regard to same disputed signatures (on Ex. P/9 & Ex.P115) an application filed earlier by opposite party-respondent No. 1/ defendant was allowed and the report of the hand writing expert of the opposite party filed, is on record. After considering the report against the interest of the petitioner, she has also applied to provide same opportunity to her in rebuttal. The present application has been disputed by the opposite party-respondents herein. The learned Judge while passing the impugned order has observed that there is already one report of the hand writing expert available on record, hence, permitting again for seeking second report of the different handwriting expert with regard to same disputed signatures does not appear justified. If the petitioner/plaintiff is not satisfied with the earlier report, she can cross-examine handwriting expert concerned. 3. While, placing reliance on the following orders of this Court, Shri D.D. Bansal, learned counsel for the petitioner has submitted that calling second hand writing expert's report is not prohibited by law. When opportunity of filing such report has been allowed to one party, in rebuttal, the opposite party also require to be provided such an opportunity. :- (1) Bahulal vs. Gendalal, 1986 (I) MPWN 119 (2) Jai Narayan vs Satya Narayan & Others, 1991 JLJ 428 , and (3) Order dated 22.08.2007 passed by Single Bench of this Court in W.P. No.3848/2007 in the case of Rajendra Singh and Another v. Gajraj Singh. 4. While countering the contentions of the petitioner, Shri Vivek Khedkar learned counsel appearing for the respondent No. 1 has submitted that once report is available on record, the opposite party can only be permitted to cross-examine the expert. Seeking another report at the behest of opposite party is not required. 4. While countering the contentions of the petitioner, Shri Vivek Khedkar learned counsel appearing for the respondent No. 1 has submitted that once report is available on record, the opposite party can only be permitted to cross-examine the expert. Seeking another report at the behest of opposite party is not required. He has placed reliance on the following judgments : (1) Balakrishna Menon & Another vs Padmavathy Amma & Another, AIR 1993 Kerala 218 (2) Sivaraman vs V.C.Narayanan AIR 1987 Kerala 156 (3) R. Vijayudu vs. N. Ramachandra Reddy AIR 2005 NOC 140 (Andhra Pradesh). Shri Khedkar while placing reliance on the judgment of the apex Court in Mohd. Yunus vs. Mohd. Mustaqim and Others AIR 1984 SC 38 has also submitted that in a petition under Article 227 of Constitution, the High Court has only to see that inferior Court or Tribunal functions within the limit of its authority. It is not required to correct the error apparent on the face of the record much less an error of law. 5. It is true that the supervisory jurisdiction of the High Court under Article 227 of the Constitution is limited to see that inferior Court or the Tribunal functions within the limit of the authority provided to it. However, if the function of inferior Court appears erroneous to the extent showing its working not as per the authority, then of course the hands of this Court are not closed. Proper function of the Courts working under this Court also require to be seen as has been observed by the apex Court in the case of Mohd. Yunus (supra). In our considered opinion, denying desired opportunity to the petitioner for rebuttal is not justified. Particularly, in the facts and circumstances of this case, in which according to the petitioner a fraud has been played by the respondents while shaking hands with each other with regard to property belonging to her. According to her, the respondent No.1 filed a collusive suit for specific performance against the respondent No.2 and in Lok Adalat on compromise, the respondent No. 1 has obtained decree behind the back of the petitioner. When one party has been provided and has availed an opportunity to produce opinion of a handwriting expert in his favour, the request of the opposite party for producing the similar type of evidence in rebuttal, appears appropriate. When one party has been provided and has availed an opportunity to produce opinion of a handwriting expert in his favour, the request of the opposite party for producing the similar type of evidence in rebuttal, appears appropriate. As observed in the case of Babulal (supra), such a course is not prohibited by Jaw. As per observation of this Court in the case of Jai Narayan (supra) the opposite party should also be allowed to adduce evidence in rebuttal under section 45 of the Indian Evidence Act. Similar view appears has been taken by another Single Bench of this Court in case of Rajendra Singh (supra) which was also a petition under Article 227 of the Constitution. 6. The judgment cited on behalf of the respondents are with regard to Commissioner's report under Order 26 of the CPC. Both the provisions are different. Under Order 26 of the CPC, commissions are to be issued for examination of witnesses, or for local investigation or scientific investigation, etc. The present dispute is related to seeking and filing of an opinion of an expert which is admissible in evidence under section 45 of the Indian Evidence Act. If report of a particular expert, is against the interest of opposite party, on request, such opposite party also deserves to be permitted to call such report in rebuttal. No doubt sometimes cross-examination of the expert concerned with the help of another expert, may serve the purpose, but not always. Even on the principle of natural justice, party ought not to and cannot be denied an opportunity of the similar nature. 7. In view of the above, we are of the opinion that the learned Judge has not rightly exercised the authority vested in it, hence, the impugned order deserves to be set aside. 8. Consequently, the petition is allowed. The impugned order is set aside. The application dated 23.10.2007 filed on behalf of the petitioner I plaintiff under section 45 of the Indian Evidence Act is allowed with a direction that the learned Judge will provide the petitioner an opportunity to get the disputed signatures (on ex.P/9 and Ex. P/!5) examined by another handwriting expert.