Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 1003 (PAT)

Saudagar Mahto v. Ram Charitra Mahto

2013-08-16

CHAKRADHARI SHARAN SINGH

body2013
ORDER Heard learned counsel for the petitioner and learned counsel appearing on behalf of respondents 1st set. 2. The petitioner is aggrieved by an order dated 20.11.2007 passed by learned Munsif-II, Begusarai in T.S. No. 74/1980 whereby the court below has refused to recall its earlier order dated 15.03.2005. 3. By the order dated 15.03.2005, it appears that, the court below has ordered for appointment of a Hand Writing Expert seeking report on comparison of thumb impression of one Chandra Shekhar Prasad Singh on the sale deed dated 03.04.1979 with the photo specimen signature of Awadh Nandan Chandra Shekhar. The documents are marked as Exhibit-D and Exhibits-X1 to X3 respectively. 4. Learned counsel for the petitioner submits that it was not within the jurisdiction of the court below to have directed for appointment of second Hand Writing Expert without setting aside the earlier report already submitted and accepted by it. He submits that earlier the documents were sent to Hand Writing Expert who, after scientific examination, had submitted his report on 12.07.1988. The said Hand Writing Expert was examined on 04.12.2001. No objection was, however, raised on the veracity of said report or bonafide of the Hand Writing Expert. Secondly, three years thereafter the respondents 1st set on 20.08.2004 filed a petition for appointment of a Hand Writing Expert afresh which has been allowed by an order dated 15.03.2005. On 19.10.2006 the petitioner filed a petition for recall of the said order dated 15.03.2005 on the ground, inter alia, that such order could not have been passed during the subsistence of the earlier report submitted by Hand Writing Expert on 12.07.1988. The petition for recall of the order has been rejected by the impugned order dated 20.11.2007. 5. Learned counsel for the petitioner has placed reliance upon a judgement of this court reported in 1992 (1) PLJR 380 (Full Bench) (Asifunisa Vs. Ali Imam) and another judgement of the Supreme Court reported in AIR 1995 (Madras) 274 (Gopalkrishnan Vs. P. Shanmugam). 6. Learned counsel for the contesting respondents 1st set has vehemently submitted that the petition dated 19.10.2006 filed by the petitioner seeking recall of the order dated 15.03.2005 passed by the court below could not be entertained and it was rightly rejected. P. Shanmugam). 6. Learned counsel for the contesting respondents 1st set has vehemently submitted that the petition dated 19.10.2006 filed by the petitioner seeking recall of the order dated 15.03.2005 passed by the court below could not be entertained and it was rightly rejected. He submits that the order dated 15.03.2005, having not been questioned by the petitioner within time prescribed under law, attained finality and right accrued to the respondents 1st set by virtue of the said order, after lapse of the limitation period, which right could not be taken away. He has placed reliance upon a Supreme Court judgement reported in (1997) 6 SCC 26 (Ashis Kumar Hazra Vs. Ruby Park Housing Co-operative Societiy Ltd. & Ors). 7. This is not in dispute that earlier, pursuant to order passed by the court below, a Hand Writing Expert was appointed to compare the signatures, as has been indicated above. The said Hand Writing Expert, namely, Hasan Raja, submitted his report way back on 12.07.1988. The Hand Writing Expert was examined on 04.12.2001, which fact is also not in dispute. The plea is that before 20.08.2004, no objection was raised by the respondents/ defendants 1st set over the said report of Hand Writing Expert. In the background of these admitted facts, it needs to be examined- whether the court below had acted beyond its jurisdiction, while allowing the petition dated 20.08.2004 for appointment of another Finger-cum-Hand Writing Expert, in view of law laid down by this court reported in the case of Asifunisa Vs. Ali Imam (supra). The court in paragraph 90 of the said judgement, after dealing with various pronouncements on the point, held as follows:– “90. Taking into all facts and circumstances into consideration, I am of the view that the court has the requisite power to appoint a second commission upon setting aside the report of the first commissioner, if any situation arises therefor.” 8. Hon’ble Mr. Justice R. N. Sahay in his separate judgement has recorded in paragraph 108 as follows:– “108. I, however, find myself unable to subscribe to the view taken by Roy, J, that the report of Commissioner cannot set aside under Section 151 of the Code of Civil Procedure because Rule 10(3) only empowers a court to direct further inquiry if the report of the Commissioner is found to be unsatisfactory. In A.I.R. 1988 Ker. I, however, find myself unable to subscribe to the view taken by Roy, J, that the report of Commissioner cannot set aside under Section 151 of the Code of Civil Procedure because Rule 10(3) only empowers a court to direct further inquiry if the report of the Commissioner is found to be unsatisfactory. In A.I.R. 1988 Ker. 169 M.P. Menon, J, has held that “even though a power to issue a second Commission could not be found in Rule 10(3) such power could be traced to the well-known principle that the power to issue a Commission is not exhausted with the first exercise thereof”. I agree with Sinha, J, that the court has power to issue second commission after setting aside the report of first Commissioner under Section 151 of the Code of Civil Procedure.” 9. In such view of the matter, I find no hesitation in holding that the court below could not have passed the order for appointment of second Finger Print-cum- Hand Writing Expert without setting aside the earlier order. 10. As regards the submission made on behalf of respondents 1st set that in any case the order dated 15.03.2005 passed by the court below for appointment of second Hand Writing Expert attained finality and could not be varied after expiration of the period of limitation, I am of the view that when it was pointed out to the court below that no second Hand Writing Expert could be appointed without setting aside the earlier report, the court was bound to consider and pass orders in terms of the judgements pronounced by this court. 11. In my opinion, the judgement relied upon by learned counsel for the respondent in case of Ashis Kumar Hazra (supra) will have no application, in the facts and circumstances of the case, as in that case the Supreme Court was dealing with a situation where the delay in filing an application was caused due to the fact that the party was bonafide pursuing his claim in another court. The case of Ashis Kumar Hazra (supra) has absolutely no application, in the facts and circumstances of this case. In view of the above, the impugned order dated 20.11.2007 passed by the court below in T.S. No. 74/1980 is set aside. 12. The case of Ashis Kumar Hazra (supra) has absolutely no application, in the facts and circumstances of this case. In view of the above, the impugned order dated 20.11.2007 passed by the court below in T.S. No. 74/1980 is set aside. 12. The court below, however, will be required to pass order afresh on the application filed by the respondents 1st set dated 20.08.2004 in accordance with law and taking into account the judgement of Full Bench reported in the case of Asifunisa Vs. Ali Imam (supra). This writ application is, accordingly, allowed.