Sarla Goel and Others v. Sangam Educational Society, Allahabad and Others
2012-08-24
PANKAJ MITHAL
body2012
DigiLaw.ai
Pankaj Mithal, J.;— This writ petition arises out of an unfortunate litigation which otherwise ought not to have seen the light of the day. 2. One of the petitioners and one of the respondents are both known mostly to everyone connected with this High Court. I was therefore, little reluctant to deal with the matter but realising that every other Hon'ble Judge like me would also be facing the same predicament and would like to recluse himself from dealing with it, I gave the counsel for the parties an option to argue the matter before me or any other Judge. It is on their consent; and the confidence and faith expressed by them in this court, that I proceed to hear the matter on merits. 3. The dispute between the parties is in respect of Nazul land No.33/2 George Town and House No.18-A, Lowther Road, George Town, Allahabad. It appears that the aforesaid property was converted into a free-hold property and a sale/lease deed in that respect was executed by the Additional District Magistrate (Nazul), Allahabad in favour of Sangam Educational Society, Allahabad, respondent No.1 which was registered on 6.11.2003 before the Sub-Registrar, Sadar, Allahabad. Petitioners instituted Original Suit No.1057 of 2006 for declaring the said deed dated 6.11.2003 to be illegal, void and inoperative. In the suit, defendant/respondents No.1 to 3 adduced documentary evidence. Some of the documents adduced in evidence were paper No.94/77C-1, 95/77C-2 and 96/77C-3. The said documents are in connection with grant of free-hold rights in the property in question on the application of the lessees/occupants of the property. The said documents purportedly bear signatures of some of the petitioners also. The petitioners are probably disputing the signatures of four of the petitioners on the said documents. Accordingly, they filed application No.135-C dated 28.2.2012 that the aforesaid documents bear forged signatures of some of the petitioners and their hand-writing and finger-print expert, namely, Madan Mohan Kakkar be permitted to take photographs of the signatures appearing on the said documents in the presence of the parties or their counsel, probably with a view to lead evidence to prove that the said signatures are actually forged. This application has been rejected by the impugned order dated 15.3.2012 and it has been upheld by the revisional court vide order dated 7.5.2012. 4. The above two orders have been impugned in the writ petition. 5.
This application has been rejected by the impugned order dated 15.3.2012 and it has been upheld by the revisional court vide order dated 7.5.2012. 4. The above two orders have been impugned in the writ petition. 5. Heard Sri Ashish Kumar Singh, learned counsel for the plaintiff/petitioners and Sri D.V.Singh, learned counsel who has appeared for respondents No.1 to 3. They have agreed for final disposal of the petition at the outset. 6. Respondent No.4 is only a proforma respondent and counsel for the parties agree that it is not necessary to serve notice upon her as her interest is represented by the plaintiff/petitioners. 7. One of the submissions of Sri Ashish Kumar Singh, learned counsel for the petitioners is that previously they moved application 73-C for comparing the signatures of some of the petitioners appearing on the above documents with their admitted signatures with the help of a hand-writing and finger-print expert which was rejected on 10.10.2011 on the ground that so far the persons whose signatures have been said to be forged have not been examined as witnesses. The petitioners thereafter moved another application 102-C dated 20.10.2011 contending that the aforesaid persons have clearly stated in their evidence that their signatures on the above documents are forged and, therefore, it is necessary to have a report of the hand-writing and finger-print expert. The said application was also rejected vide order dated 17.11.2011 with the observation that the petitioners may, if necessary, call for the report of the hand-writing and finger-print expert, once the cross examination of the witnesses is complete. It is subsequent to the completion of the above formalities that the petitioners filed the present application and, as such, it ought to have been allowed. Otherwise, it would be denial of opportunity to adduce evidence to substantiate the claim of forged signatures on the above documents. The genuineness of the signatures of the parties on the above documents goes to the root of the matter, inasmuch as, in absence of a proper application by all concerned for grant of free-hold rights, the sale/lease deed in dispute could not have been executed by the Additional District Magistrate (Nazul). 8. Sri D.V.Singh has contended that the order rejecting the above application causes no prejudice to the petitioners. It is an interlocutory order and, as such, it requires no interference in exercise of writ jurisdiction. 9.
8. Sri D.V.Singh has contended that the order rejecting the above application causes no prejudice to the petitioners. It is an interlocutory order and, as such, it requires no interference in exercise of writ jurisdiction. 9. Learned counsel for the parties, after having advanced the arguments on merits as aforesaid on some length agreed that probably there is no harm if a hand-writing and finger-print expert is permitted to take photographs of the signatures appearing on the above documents and the petitioners produce the report thereof, if any, within a time bound period without delaying the proceedings, inasmuch as in an earlier petition under Article 227 of the Constitution i.e. Petition No.1299 of 2011 Shyam Bihari Agarwal and another Vs. Additional Judge, Small Causes Court and others in connection with the present suit, this Court vide order dated 30.5.2011 has issued a direction to decide the suit very expeditiously, preferably by the end of the year 2011, curtailing all unnecessary adjournments to the parties. 10. In view of the above and in the light of the provisions of Sections 45, 47 and 73 of the Indian Evidence Act, which provide that the opinions of any hand-writing and finger-print expert and that of a person who is acquainted with the hand-writing of the person concerned are relevant when the question as to the identity of hand-writing or finger print is involved before the court; and that the court may also compare the hand-writing or the signature with the admitted hand-writing or signature of the person concerned by directing such a person to write in words or figures to enable it to make the comparison, it appears to be essential that the petitioners be permitted to adduce relevant evidence in this regard which is only possible if they are permitted to obtain photographs of the signatures so appearing on the above documents as the genuineness of the signatures of some of the petitioners on the above document is being disputed. 11.
11. Accordingly, in my opinion, the impugned orders dated 7.5.2012 passed by the District Judge, Allahabad in Civil Revision No.133 of 2012 and dated 15.3.2012 passed by the Additional Civil Judge/Additional Civil Judge, Small Causes Court, Allahbad are unsustainable and are hereby quashed and the petitioners or their hand-writing and finger-print expert is permitted to take photographs of the signatures appearing on the above noted documents in the presence of the parties or their counsel. The application of the petitioners 135-C to that effect stands allowed. The court below would permit the petitioners to take the photographs of the signatures aforesaid at its convenience so that the exercise in this regard is completed within a period of two weeks, whereupon the court below will proceed with the suit and decide it most expeditiously, keeping in mind the previous direction of this court, preferably within a period of four months from the date of production of certified copy of this order. 12. The writ petition is allowed as above. _____________