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2012 DIGILAW 1019 (MP)

Shyamlata Bindal v. Purushottam Das Agarwal

2012-10-08

SUJOY PAUL

body2012
Judgment Sujoy Paul, J.;- 1. In this petition filed under Article 227 of the Constitution, the petitioner has challenged the order of the court below, whereby the court below has rejected the application preferred by the defendant/petitioner under section 45 of the Evidence Act. The facts necessary for adjudication of this matter are as under:- Civil suit No. 89A/2009 (Annexure P-1) was filed for recovery of movable property. It is stated in the plaint that the plaintiff had given an ornament ("Kardhani"/waistband) to the present petitioner but the same was not returned to the plaintiff. In support of the said plaint a guarantee receipt dated 6.3.2003 was relied upon. It is stated that the said guarantee receipt contains signature of present petitioner, which shows that the said ornament was received by the petitioner. The petitioner/defendant filed her written statement and refuted the allegations mentioned in para 2 of the plaint. In para 5 of the written statement it is specifically mentioned that the petitioner never received any ornament as stated in the plaint. The court below framed issues on 5.8.2010 and issue No. 1 is framed as under:- Thereafter the present petitioner preferred an application under section 45 of the Evidence Act with a prayer that the signature of the petitioner mentioned in guarantee receipt, written statement and other exhibits be examined by a handwriting expert. This application under section 45 of the Evidence Act (Annexure P-15) is rejected by the court below by the impugned order dated 12.12.2011. The court below has rejected the said application on the ground that the petitioner has not denied that his signatures are not there in the guarantee receipt. It is further held that the matter is presently posted for evidence of the parties and at this stage there is no need to obtain opinion of a handwriting expert. 2. Criticizing this order, Shri Sanjay Kumar Sharma, learned counsel for the petitioner, submits that the written statement makes it clear that there is not even an implied admission of the present petitioner that guarantee receipt contains his signature. He submits that the court below should have allowed the said application. 3. 2. Criticizing this order, Shri Sanjay Kumar Sharma, learned counsel for the petitioner, submits that the written statement makes it clear that there is not even an implied admission of the present petitioner that guarantee receipt contains his signature. He submits that the court below should have allowed the said application. 3. Per Contra, Shri R.K. Soni, learned counsel for the other side supported the order passed by the court blow and submitted that there is no specific denial by the petitioner about the averment of the plaint that the guarantee receipt contains his signature. 4. I have heard learned counsel for the parties and perused the record. 5. In the considered opinion of this Court, a perusal of plaint and written statement shows that there is no unconditional unequivocal admission of the averment that the guarantee receipt contains signature of the present petitioner. On the contrary, the court below was required to appreciate the pleadings of the written statement wherein the petitioner has specifically pleaded that the petitioner has denied about receipt of the said ornament. Once the very receipt of the said ornament is specifically denied, there is no question of even impliedly admitting the signature on the guarantee receipt. However, it is made clear that this Court is giving the finding only for adjudicating upon the impugned order and this finding will not adversely affect the proceedings and appreciation of evidence before the court below. In other words, this prima facie finding of this court is based on the basis of existing pleadings of the parties and this will not have any impact on the finding which will be ultimately arrived by the trial court after recording evidence of the parties regarding signature on the guarantee receipt. 6. In 2010 (4) MPHT 219 (L.S. Trading Company, Gwalior and another vs. Manish Mishra) this Court opined that there are several methods to get a document proved. One such method is by calling the handwriting expert. This view is given by this Court after examining various provisions of the Evidence Act. Again in 2011 (1) MPHT 174 (Asharam and another vs. Suraj Singh Baghel and others), this Court opined as under in para 9 :- 9. One such method is by calling the handwriting expert. This view is given by this Court after examining various provisions of the Evidence Act. Again in 2011 (1) MPHT 174 (Asharam and another vs. Suraj Singh Baghel and others), this Court opined as under in para 9 :- 9. Apart from the reasons which we have assigned herein above, 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 signs 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. 7. On the basis of aforesaid, it is clear that the court below has erred in disallowing the application on the basis of improper consideration. To separate wheat from chaff court below should have allowed the said application. The expert opinion will be an aid in the search of truth. Accordingly, petition is allowed. The impugned order dated 12.12.2011 is set aside and application under section 45 of the Evidence Act is allowed. The court below is directed to proceed from the said stage in accordance with law. No costs.