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2013 DIGILAW 1877 (DEL)

Chhotey Lal v. Kirori Lal

2013-09-26

M.L.MEHTA

body2013
JUDGMENT : M.L. Mehta, J. 1. Arguments have already been heard. 2. This petition seeks assailing of order dated 17.12.2011 whereby application under Order 41 Rule 27 r/w Section 151 CPC, filed by the respondent, was partly allowed to the extent that he was permitted to lead additional evidence by calling or summoning the record of bank pertaining to account No. 458714, Bank of Baroda, Kirti Nagar Branch, Delhi being operated by the petitioner (the plaintiff in the suit) and also to get his signatures compared with the disputed signatures by the handwriting expert. The petitioner/plaintiff has grievance to this extent against the impugned order of the ADJ. 3. The property in question was purchased in the joint names of the petitioner and the respondent, who are real brothers, in the year 1972. This property was constructed, and thereafter let out to various tenants from time to time. Undisputedly, the respondent was collecting rent from the tenants and giving to the petitioner his share of the rent. Thereafter, the petitioner filed a suit for partition, rendition of accounts and injunction against the respondent sometime in November 1998. Issues in this suit were framed on 07.02.2000. After the trial, preliminary decree was passed on 22.12.2007. One of the issues which were framed by the trial Court, being issue No. 2 was as under: “Whether the plaintiff is entitled for decree of partition of suit property, as prayed for, in the suit? OPP”. 4. The respondent challenged the preliminary decree by filing an appeal being RCA 32/2011 in the court of Additional District Judge (Central)-12. During the pendency of this appeal, the respondent herein (appellant in RCA 32/2011) also filed an application under Order 41 Rule 27 CPC read with Section 151 CPC, which came to be partly allowed in that the respondent herein, who was the defendant in the suit was permitted to lead additional evidence in the manner as indicated above. The plea that was taken by the respondent herein before the court of ADJ was that he had filed an application under Order 6 Rule 5 CPC on 29.02.2002, seeking better particulars from the bank of the petitioner for the purpose of comparing the alleged signatures of the petitioner with the one appearing on the agreement Ex. The plea that was taken by the respondent herein before the court of ADJ was that he had filed an application under Order 6 Rule 5 CPC on 29.02.2002, seeking better particulars from the bank of the petitioner for the purpose of comparing the alleged signatures of the petitioner with the one appearing on the agreement Ex. DW2/1 alleged to be executed by him with his admitted signature by way of examination and comparison through handwriting expert, but the said application had been dismissed by the learned Civil Judge vide order dated 29.05.2002 reasoning as under: “In view of the submission and facts and circumstances the defendant has already obtained the specimen signatures of the Plaintiff from the judicial file and sent to the opinion of the handwriting expert. As such, there is no need to take signature of the plaintiff from the bank account. The application seems to be motivated and found no substance on merits. As such hereby dismissed. No orders as to costs.” 5. It was the respondent’s submission before the Addl. District Judge that when his application under Order 6 Rule 5 CPC had been dismissed by the Civil Judge, he could not have based his findings observing that he did not bother himself to summon the so-called real signatures of the petitioner from the bank concerned, nor himself has placed anything on record which bears the signatures of the same nature and characteristics as that of the signatures so appearing at Point ‘B’ on agreement Ex.DW2/1. 6. The learned ADJ vide the impugned order dated 17.12.2011 allowed this part of the request of the respondent and permitted him to lead additional evidence reasoning as under: “Therefore in all fairness, the appellant is to be permitted to lead additional evidence by calling or summoning the requisite record of bank account no. 458714, Bank of Baroda, Kirti Nagar, Delhi i.e. the account opening record of the respondent (plaintiff) of his previous bank as prayed in his application filed before the ld. Court below under Order 6 Rule 5 CPC. The appellant after summoning such record would be entitled to get the questioned signatures of the respondent (plaintiff) on the agreement Ex. DW2/1 compared by handwriting/signatures expert. He is thus also permitted to examine a handwriting expert at his own cost and expense. “7. Court below under Order 6 Rule 5 CPC. The appellant after summoning such record would be entitled to get the questioned signatures of the respondent (plaintiff) on the agreement Ex. DW2/1 compared by handwriting/signatures expert. He is thus also permitted to examine a handwriting expert at his own cost and expense. “7. It is this order of the learned ADJ which is challenged in the instant petition by the petitioner/plaintiff. 8. It is the submission of the learned counsel for the petitioner that the respondent having failed to prove the signatures of the petitioner on the agreement Ex.DW2/1, the learned Civil Judge rightly observed the said documents having not been proved as per law. It is submitted that the remand of the case by the learned ADJ with opportunity being afforded to the respondent to prove the alleged signatures of the petitioner on Ex.DW2/1 was to re-open the case. It is also submitted that even if the respondent is allowed to lead evidence as regard to the signatures on Ex.DW2/1 by examining the bank official, that would not lead to any different findings inasmuch as the said document being neither stamped nor registered was not admissible in evidence as per Indian Stamp Act and the Indian Registration Act. 9. So far as the contention that the said document Ex.DW2/1 was neither stamped nor registered, and was not admissible, this aspect cannot be gone into in the present proceedings, and was to be examined by the learned ADJ in the appeal that is to be heard by him on merits. So far as the opportunity afforded by the learned ADJ to the respondent to permit him to lead additional evidence of the bank official and handwriting expert, I do not see any illegality or impropriety in the said order. This is more so in view of the fact that the respondent had already filed an application under Order 6 Rule 5 CPC for the same purpose which had been dismissed by the learned Civil Judge by an earlier order. The document Ex.DW2/1 which is stated to be a relinquishment deed allegedly signed by the petitioner, but denied by him goes to the root cause of the controversy. Thus, I do not see any infirmity or illegality in the impugned order. The petition being without any merit is hereby dismissed.