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Madhya Pradesh High Court · body

2010 DIGILAW 1059 (MP)

Asharam v. Suraj Singh Baghel

2010-10-20

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2010
Evidence Act, 1872—Ss.45, 47 and 67—thumb impression on impugned document of agreement of sale – examination by handwriting expert—examination of thumb mark is a complete science –because the thumb impression of two persons cannot be similar –application under S.45 allowed. ORDER A.K. Shrivastava, J. -- 1. Asuit for specific perfomance of contract has been filed by plaintiffs/petitioners in respect of certain immovable property which is the subject matter of the suit. The factum of execution of the agreement of sale has been denied right from very beginning by the defendant Nos. 1 and 2/ respondents in their written statement. the defendants further denied their thumb impression on the document of agreement of sale. 2. At the stage of final argument, an application under section 45 of the Evidence Act was filed by the plaintiffs to get the document examined by handwriting expert in order to take out the grain from the chaff 3. This application was vigorously opposed by learned counsel appearing for the respondents, who were defendants in the trial Court. 4. The learned trial Court dismissed the said application by the impugned order and in this manner, this petition has been filed under Article 227 of the Constitution of India. 5. In their usual vehemence Shri Soni and Shri Kaurav, learned counsel appearing for the petitioners, submitted that under section 47 and 67 of the Evidence Act no particular mode has been legislated by the Legislature to prove a document and a document can be proved by several modes including one of the mode to get it examined by handwriting expert. Hence, learned counsel submitted that in order to take out the grain from the chaff, even if the application to get the document examined by handwriting expert was filed at the fag end of the trial when the case was fixed for final argument, the law is not so much harsh so as to shut down the doors to provide justice to the parties. 6. 6. Shri Chandil, learned counsel for the respondents/defendants, submitted that when all the cards were opened at the time of final argument filing such type of application before learned trial Court under section 45 of the Evidence Act to get the impugned document examined by handwriting expert is nothing but filling up the lacuna of the case which is not at all permissible and, therefore, learned counsel submitted that learned trial Court has rightly dismissed the application. 7. We have considered the submissions made by learned counsel for the parties. 8. True, the plaintiffs should be vigilant during the trial and should have filed such an application if they want to get the said document proved by the handwriting expert at an early stage. But, one important fact which cannot be marginalized and blinked away is that the procedural law is always ment to provide substantial justice to the parties and not to put hurdles while administering justice. Under sections 47 and 67 of the Evidence Act no particular mode is provided by the Legislture that how and in which manner a document should be proved. There are several modes of proving a document and one of the mode is to get the document proved by examining the hand Writing expert. If the plaintiffs are praying to the Court to provide an opportunity to prove a document by handwriting expert, according to us, the procedural law is not that much tight not to provide justice to the plaintiffs. 9. Apart from the reasons which we have assigned hereinabove, as submitted by learned counsel for the parties, on the document of agreement of sale the thumb impression is said to have been of the defendant No.2 and if that would be the position, since the examination of thumb mark is a complete science because the thumb impression of two persons cannot be similar and, therefore, in order to take out the grain from the chaff, the examination of document of agreement of sale was required to be examined by the handwriting expert. According to us, the learned trial Court has traversed beyond the scope of sections 47 and 67 of the Evidence Act and has dismissed the application of the plaintiffs to get the impugned document examined by handwriting expert and, hence, we have no exception except to set aside the impugned order and we, accordingly, do so. 10. According to us, the learned trial Court has traversed beyond the scope of sections 47 and 67 of the Evidence Act and has dismissed the application of the plaintiffs to get the impugned document examined by handwriting expert and, hence, we have no exception except to set aside the impugned order and we, accordingly, do so. 10. Resultantly, this petition succeeds and is hereby allowed. The application under section 45 of the Evidence Act of the plaintiff is allowed on payment of cost of Rs. 5,000/- (Rs. Five thousand Only). It is further made clear that except the examination of the handwriting expert and getting the document examined by him, since the plaintiffs have already closed their evidence, the learned trial Court will not give any further more opportunity to them to adduce any more evidence. It is also made clear that defendants too will not adduce any other evidence except in the rebuttal of the evidence of the handwriting expert. Let the cost be deposited in the trial Court prior to the examination of handwriting expert and getting the impugned document examined by him. Looking to the facts and circumstances of the case the parties shall abide by the cost of this petition.