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2011 DIGILAW 22 (RAJ)

Pratap Singh v. Zimmi

2011-01-04

NARENDRA KUMAR JAIN

body2011
JUDGMENT : Narendra Kumar Jain, J. 1. Heard learned counsel for the parties. 2. Admit. 3. At the request of parties, final arguments were heard in the case and the writ petition is being disposed of finally. 4. Briefly stated the facts of the case are that plaintiff/respondents filed a suit for cancellation of sale deed dated 11.11.1991 in the trial Court in the year 1993. Defendants Nos. 4 to 9 filed their written statements in the year 1994 along with original sale deed dated 11.11.1991. Plaintiffs' evidence in the case was closed on 17.11.2008 and case was fixed for defendants' evidence. 5. Plaintiffs filed an application dated 17.08.2009 under Section 45 of the Evidence Act read with Section 151 Civil Procedure Code in the trial Court that there is thumb impression of vendor Gopi on the sale deed, whereas he is literate and used to put his signature, therefore, thumb impression of Gopi be taken and the same may be sent along with original sale deed for necessary report from Forensic Science Laboratory. Defendants contested the application by filing written reply dated 12.10.2009. 6. Learned trial Court, after hearing arguments of both the parties, allowed the application vide order dated 05.11.2009, which is impugned in this writ petition preferred on behalf of defendants. 7. Submission of learned counsel for defendants/petitioners is that original sale deed was filed in the Court way back in the year 1994, plaintiffs' evidence was closed on 17.11.2008, matter is fixed for defendants' evidence, therefore, present application was belated by 16 years, therefore, the trial Court committed an illegality in allowing the application. He further submitted that the trial Court has passed an order that original sale deed be handed over to plaintiff with his thumb impression to get report from F.S.L., which is absolutely illegal as at the most original sale deed could have been sent by the Court itself to F.S.L. for necessary report. 8. He further submitted that the trial Court has passed an order that original sale deed be handed over to plaintiff with his thumb impression to get report from F.S.L., which is absolutely illegal as at the most original sale deed could have been sent by the Court itself to F.S.L. for necessary report. 8. Submission of learned counsel for plaintiffs/respondents is that no doubt that there is delay in filing application in the trial Court, but since the present suit is a suit for cancellation of sale deed dated 11.11.1991 and thumb impression of Gopi is said to be forged one, therefore, it will be just and proper, in the interest of justice, that thumb impression of Gopi be taken in the Court and the same may be sent for necessary report along with original sale deed. So far as delay in filing application is concerned, he submitted that delay cannot be a ground for rejecting the application, if the same is necessary and at the most delay can be compensated by awarding cost to defendants. So far as submission of learned counsel for petitioners about handing over the original document to plaintiffs is concerned, he agreed that it may not be handed over to the plaintiffs, but it may be sent directly to the F.S.L. by the Court itself and he will deposit necessary charges for report, he is also ready to pay reasonable amount of cost for delay in filing the application so as to compensate the defendants. 9. I have considered the submissions of learned counsel for the parties in the light of reasons assigned by the trial Court for allowing the application dated 17.08.2009. 10. Both the parties have not disputed the facts of the case, as mentioned above, that suit was filed in the year 1993, written statements of defendants Nos.4 to 9 were filed along with original sale deed in the year 1994, plaintiffs' evidence was closed on 17.11.2008 and present application was filed on 17.08.2009 and there is delay of 16 years in filing the application. 11. Learned trial Court while allowing the application, has observed that controversy in between the parties in the present case is whether thumb impression of Gopi on the original sale deed is forged or not. 11. Learned trial Court while allowing the application, has observed that controversy in between the parties in the present case is whether thumb impression of Gopi on the original sale deed is forged or not. Since thumb impression of Gopi on the sale deed has been challenged, therefore, it will be just and proper, in the interest of justice, to call the report from F.S.L. by taking thumb impression of Gopi in the Court and sending the same to F.S.L. along with original sale deed. The reasons assigned by the trial Court for getting F.S.L. report appear to be justified, however, learned trial Court committed an illegality in passing the order that original sale deed may be handed over to the plaintiffs for getting report from F.S.L. The same should have been sent directly by the Court to the F.S.L. on deposit of necessary charges by the plaintiffs. Since there is delay of 16 years, therefore, reasonable amount of cost should have been awarded while allowing the application, to compensate the defendants. 12. In view of above discussions, the writ petition is disposed of with following directions:- (i) The trial Court will get thumb impression of Gopi in the Court and will send the same along with original sale deed dated 11.11.1991 to the F.S.L. for its report on deposit of necessary charges and amount of cost, which is quantified as Rs.5,000/- by the plaintiffs. (ii) Impugned order passed by the trial Court is modified to the above extent. (iii) So far as this writ petition is concerned, cost is made easy.