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2011 DIGILAW 754 (CAL)

Subol Chandra Mondal v. Nitai Chandra Mondal

2011-06-08

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. This application is directed against the order dated May 8, 2007 passed by the learned Civil Judge (Junior Division), 1st Court, Alipore in Title Suit No.351 of 2004 thereby allowing the application of the defendant dated November 20, 2006 and also not permitting the plaintiff to adduce evidence of Shri Rajani Kanta Das, private handwriting expert on his behalf. The petitioner instituted a suit being Title Suit No.240 of 1983 (subsequently renumbered as Title Suit No.351 of 2004) against the opposite parties praying for declaration and permanent injunction. The opposite parties are contesting the said suit and the suit was at the stage of recording evidence. Initially, the petitioner filed an application for appointment of a handwriting expert and that application was allowed. Accordingly, a handwriting expert was appointed and he submitted his report. Being dissatisfied with the said report, he filed another application for giving opinion on certain points, that is, on comparison of the signature of the petitioner with the disputed one at the third page of the so-called deed of sale dated December 24, 1982. Initially, the application for further opinion by the expert was allowed. Thereafter, the petitioner filed another application praying for the selfsame relief which was rejected by the learned Trial Judge. The matter went up to the Hon’ble High Court by way of revision and the Hon’ble High Court has confirmed the said order thereby confirming the order of rejection of appointment of a handwriting expert afresh. Thereafter, the petitioner filed another application praying for the selfsame relief which was rejected by the impugned order. The petitioner also prayed for adducing evidence by a private handwriting expert appointed by him and that prayer for examination of that private expert was also rejected by the impugned order. Being aggrieved, this application has been preferred. The following questions have arisen for decision in this revisional application:- i) Whether the impugned order should be sustained, and ii) Whether the petitioner is entitled to file successive petitions over the selfsame matter. Being aggrieved, this application has been preferred. The following questions have arisen for decision in this revisional application:- i) Whether the impugned order should be sustained, and ii) Whether the petitioner is entitled to file successive petitions over the selfsame matter. Upon hearing both the sides and on consideration of the materials on record, I find that the plaintiff has filed the suit for declaration and permanent injunction praying for the following reliefs:- (a) For a decree of declaration that the alleged kobala purported to have been executed on 24.12.82 and allegedly registered on 31.1.83 and 26.2.83 is absolutely void based on forgery and a mere payer transaction without any consideration. (b) For a decree for declaration that the defendants did not require any interest in the suit property on the basis of the alleged kobala. (c) For a decree for declaration that the defendants did not acquire any interest on respect of the plaintiffs demarcated portion of the suit fishery. (d) For a decree for permanent injunction restraining the defendants from disturbing with the possession of the plaintiff of the suit property or from dispossessing the plaintiff therefrom. (e) For a decree for temporary injunction. (f) For a decree for all costs of the suit. (g) For other relief or reliefs. Thus, from the above prayer, it is apparent that the so called deed of sale dated December 24, 1982 is under challenge in the said suit. To clarify the situation, it may be noted herein that the petitioner has contended that before the registration, he realised that no deed of partition was executed, although, it was settled that the deed of partition would be executed in respect of the properties as described in the schedule of the plaint at the time of registration before the Sub-Registrar, Alipore. When he realised that a deed of sale had been prepared instead of a deed of partition, he did not sign and put his L.T.I. on that date before the Sub-Registrar, Alipore. Subsequently, the said deed was tendered before the Registrar of Assurance, Kolkata on January 31, 1983. It is the contention of the petitioner that the L.T.I. appearing at page 3 did not belong to him and so he filed the suit. Subsequently, the said deed was tendered before the Registrar of Assurance, Kolkata on January 31, 1983. It is the contention of the petitioner that the L.T.I. appearing at page 3 did not belong to him and so he filed the suit. Thus, the said deed of sale dated December 24, 1982 is under challenge in the suit and the question involved therein is to the effect whether the petitioner had actually executed the said deed. Under the situation, a handwriting expert was appointed at the instance of the petitioner and the handwriting expert so appointed submitted his report. The petitioner has contended that the L.T.I. appearing at page 3 of the deed, that is, on the back page of the deed does not belong to him and the report of the handwriting expert is silent over it. For that reason, he wanted to adduce evidence by a handwriting expert appointed privately by him. Having considered the facts and above circumstances of the suit, I find that the petitioner has filed several applications for comparison of the L.T.I. appearing on the back of the third page of the so-called deed of sale with the admitted L.T.I. The admitted signature and the L.T.I. of the petitioner were taken in the Court in presence of both the parties and those were sent to the handwriting expert for comparison with the disputed signatures and L.T.I.s appearing on the so-called deed of sale dated December 24, 1982. The handwriting expert so appointed, submitted his report. The petitioner has contended that the report of the handwriting expert does not lay down anything about the L.T.I. appearing on the back of the third page of the said deed. So, the prayer was made. Initially, I find that after submission of the report by the handwriting expert, the petitioner filed another application on the selfsame matter and that application was allowed by the order dated November 20, 2000. It does not appear that the petitioner took any step as per that order. Subsequently, the petitioner filed another application for the selfsame purpose and that application was rejected by the order no.179 dated January 31, 2002. Being aggrieved by such order, the petitioner went up to the Hon’ble Court. By the order dated January 18, 2005 in C.O. No.1677 of 2004, Hon’ble Justice Mr. Subsequently, the petitioner filed another application for the selfsame purpose and that application was rejected by the order no.179 dated January 31, 2002. Being aggrieved by such order, the petitioner went up to the Hon’ble Court. By the order dated January 18, 2005 in C.O. No.1677 of 2004, Hon’ble Justice Mr. Subhro Kamal Mukherjee (one of the Hon’ble Judges of this Hon’ble Court) rejected the revisional application thereby confirming the order passed by the learned Trial Judge. While disposing of the said revisional application, the Hon’ble Single Bench has observed that the successive applications for appointment of an expert are discouraged. Accordingly, the impugned order was not interfered with in exercising the superintending jurisdiction. Subsequently, the petitioner has renewed the prayer and he tendered evidence under Order 18 Rule 4 of the C.P.C. of a handwriting expert appointed by him. Such prayer was rejected by the learned Trial Judge. I think the learned Trial Judge has rightly rejected the same. The privately engaged handwriting expert was not at all concerned with the admitted signature. He might have compared the signatures which were forwarded to him by the petitioner privately and the opposite parties have no concern with the same. From the above facts and circumstances, it is evident that the petitioner is trying to drag the suit for unending period and for that reason, he has filed successive applications over the selfsame matter which was discouraged by this Honble Court earlier as observed above. In spite of that, the petitioner tendered evidence of a handwriting expert under Order 18 Rule 4 of the C.P.C. What cannot be done directly, cannot also be done indirectly. Successive applications for appointment of a handwriting expert have been discouraged by this Hon’ble Court. The matter was settled earlier at the time of disposal of the first application for appointment of a handwriting expert. The principle of res judicata also applies during the pendency of the suit at the subsequent stage. So, the petitioner is not entitled to file successive applications for the selfsame purpose. When the revisional Court rejected the prayer of the petitioner in C.O. No.1677 of 2004, the petitioner did not prefer any appeal against the said order. Therefore, the matter for comparing signature of the petitioner on the back side of the third page of the so-called sale deed has been finally settled. When the revisional Court rejected the prayer of the petitioner in C.O. No.1677 of 2004, the petitioner did not prefer any appeal against the said order. Therefore, the matter for comparing signature of the petitioner on the back side of the third page of the so-called sale deed has been finally settled. The petitioner is not, therefore, entitled to adduce evidence in an indirect way as prayed for. The successive applications over the selfsame matter are not, therefore, maintainable. The learned Trial Judge has, therefore, come to a right conclusion that the evidence of Shri Rajani Kanta Das under Order 18 Rule 4 of the C.P.C. is irrelevant and the same cannot be accepted on behalf of the petitioner. Accordingly, the learned Trial Judge has allowed the application of the defendants / opposite parties dated November 20, 2006 and the plaintiff was disallowed to adduce evidence of Shri Rajani Kanta Das as a private handwriting expert on his behalf appointed by him. The learned Trial Judge has, therefore, rightly disposed of the matter. There is nothing to interfere with the impugned order. The above two questions are thus answered. In that view of the matter, I am of the opinion that this application is devoid of merits. It is, therefore, dismissed. However, as the suit is pending since 1983, the learned Trial Judge is directed to dispose of the suit within a period of four months from the date of communication of this order. To ensure disposal of the said suit within the aforesaid period, the learned Trial Judge shall take up the matter on day-to-day basis hearing. He shall not grant any unnecessary adjournments to either of parties except where the situation is beyond the control of the parties. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.