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2012 DIGILAW 1397 (PAT)

Ram Ratan Ram v. Rangila Ram

2012-10-01

SAMARENDRA PRATAP SINGH

body2012
ORDER The plaintiff-respondent no.1 filed Title Suit No.86/1996 for adjudication that properties have been partitioned by Bakhudaha agreement and as such the defendants have no concerned with the properties mentioned in Schedule I of the plaint and as such interference made by them is illegal. 2. The defendant-petitioner sought relief for injunction in the matter. 3. The case of the plaintiff is that one Bhikhari Chamar was the ancestor of the parties who had one son Sheo Prasad Chamar. Sheo Prasad Chamar died leaving behind him his three sons namely Manshi Chamar, Nawal Chamar and Rangila Chamar. After the death of Sheo Prasad Chamar, his three sons were separated in the year 1980 and divided their properties by Bakhudaha Agreement. 4. It is stated that Manshi Chamar died leaving behind his sole daughter. The petitioner in this writ application is the husband of the sole daughter of late Manshi Chamar. He filed a petition under Order 1 Rule 10 CPC for being impleaded as party defendant as he derived substantial interest in the property through his wife who was sole issue of her father-in-law Manshi Chamar. The intervention application of the petitioner was allowed in the year 1998. After issues were framed, the plaintiff began his evidence which was closed some time in the year 2003. Thereafter the other defendants began their evidence. 5. As one of the documents relied upon by the petitioner-defendant was not marked as exhibit, he moved this Court in C.R.No.294 of 2006 which was allowed by this court by order dated 9.10.2007. The document was ultimately marked as exhibit on 24.4.2009. The defendant-petitioner denied execution of thumb impression of his father-in-law on the written agreement. The petitioner filed a petition for comparing the thumb impression appearing on the said agreement on which the plaintiff had based his claim vis-a-vis with the admitted thumb impression of his father-in-law namely Manshi Chamar on the mortgaged deed. The petitioners state that the expert examination of two signatures would decide the case itself conclusively. The trial court rejected the petition of the defendant-petitioner on the ground that the case is fixed for argument and the plaintiff has already adduced his evidence and has even cross-examined the witnesses of the defendants. 6. The petitioners state that the expert examination of two signatures would decide the case itself conclusively. The trial court rejected the petition of the defendant-petitioner on the ground that the case is fixed for argument and the plaintiff has already adduced his evidence and has even cross-examined the witnesses of the defendants. 6. The trial court further observed that though the defendant-petitioner was impleaded as defendant in the year 1988, he did not take any steps for comparison of thumb impression all these years. 7. The petitioner submits that expert opinion can be sought at any stage of the case in order to decide the suit authoritatively. The petitioner submits that within 1 ½ months of marking of exhibit of the mortgaged deed, he filed a petition for examination of the thumb impression of Manshi Ram put on the agreement with his admitted thumb impression on the mortgaged deed. 8. The petitioner in support of his contention relied upon a decision of the Hon’ble Apex Court in the case of K.K.Velusamy Vs N.Palanisamy, reported in 2011(2) PLJR 138(SC) wherein the Apex Court observed that if there is a time gap between the completion of evidence and hearing of the arguments and if in the interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to action or conduct of other party come into existence, the court may in exercise of its inherent power permit the production of such evidence if it is relevant and necessary in the interest of justice. 9. The petitioner has also placed reliance upon a judgment in the case of Guru Govindu v. Devarapu Venkataramana, reported in AIR 2006Andhra Pradesh 371, wherein the Division Bench while examining scope of sections 45 and 73 of the Evidence Act, observed that a party can file an application for sending the signature or hand writing to a hand writing expert even at the stage of argument. 10. Thus, learned counsel submits that there has been no delay or laches on his part in filing a petition for expert examination of thumb impression of late Manshi Ram with his admitted thumb impression on the mortgaged deed. 11. I am in agreement with the view of learned counsel for the petitioner that the document can be sent for expert examination, if it is necessary for deciding the dispute authoritatively. 11. I am in agreement with the view of learned counsel for the petitioner that the document can be sent for expert examination, if it is necessary for deciding the dispute authoritatively. The expert examination of the admitted thumb impression of late Manshi Ram with his thumb impression on the mortgaged deed would be necessary in the facts and circumstances of the case. I find that the trial court erred in law in rejecting the application of the defendant-petitioner on the ground of delay. 12. One cannot at the same time overlook that the defendant-petitioner filed his written statement in the year 1998. He ought to have taken steps earlier for expert examination of the thumb impression of Manshi Ram vis-a-vis with his admitted thumb impression on the mortgaged deed. It is not the case of the defendant-petitioner that the said document was not in his possession earlier as well. In the circumstances the defendant-petitioner would be liable to compensate the plaintiff by depositing Rs.500/- by way of cost in trial court within four weeks from the date of receipt/production of a copy of this order. The impugned order dated 2.11.2009 passed by the Munsif Ist, Siwan in Title Suit No.86/1996 is set aside. The trial court would ensure comparison of the thumb impression of Manshi Ram appearing on the agreement with admitted signature on mortgaged deed, by expert for which the defendant-petitioner would deposit the necessary cost within a week from the date of passing of the order. The plaintiff-respondent would have a right of rebuttal. 13. This writ application is allowed.