Alakshendra Pratap Singh v. State of U. P. and Another
2013-01-02
PANKAJ MITHAL
body2013
DigiLaw.ai
Pankaj Mithal, J.— Heard Sri Satyendra Pratap Singh, learned counsel for the petitioner and Sri Udai Chandani, learned counsel appearing for respondent no. 2. The pleadings between the parties have been exchanged and they have agreed for final disposal of the writ petition at this stage itself. The writ petition is directed against the order dated 15.9.2009 passed by the trial court and the revisional order thereto dated 28.1.2011. The trial court has allowed the application of the respondent no. 2 under Order 9 Rule 13 CPC for setting aside the ex-parte decree and the same has been upheld in revision. It appears that Original Suit No. 42 of 2003 for cancellation of a sale deed was decreed vide judgment and order dated 16.9.2003. The respondent no. 2 applied for setting aside the aforesaid ex-parte decree on the ground that he had no notice of the suit and that the summons were never served upon him. The application was initially allowed by the trial court but the order was set aside in revision. The above orders were finally set aside by this Court vide judgment and order dated 28.4.2009 passed in Writ Petition No. 48994 of 2008 (Jagdish Prasad Singh Vs.Alakshendra Pratap Singh) and the matter was remanded to the trial court for decision afresh of application under Order 9 Rule 13 CPC. It is in pursuance to the above order of remand that the impugned orders have been passed. Challenging the impugned orders the submission of the Sri Singh, learned counsel for the petitioner is that this Court while remanding the matter has issued specific direction to the court to record positive finding as to whether the signature of the defendant's counsel on the order sheet of the suit are genuine or forged but the courts below without calling for any expert opinion on the subject allowed the application under Order 9 Rule 13 CPC. A perusal of the impugned orders of the courts below reveal that the signature of the counsel on the vakalatnama and the order sheet were compared by the court. On comparison of the signatures, the court was of the view that the signatures on the two documents aforesaid do not match and this is apparent to the naked eyes.
A perusal of the impugned orders of the courts below reveal that the signature of the counsel on the vakalatnama and the order sheet were compared by the court. On comparison of the signatures, the court was of the view that the signatures on the two documents aforesaid do not match and this is apparent to the naked eyes. Thus, the court concluded that the counsel of the defendant had not put signatures on the order sheet so as to attribute knowledge of the dates fixed to him. The aforesaid finding has been approved by the revisonal court also. In view of the above when the two courts have concurrently concluded that the order sheet does not contain the signatures of the counsel of respondent no. 2, there is hardly any scope for interference with the same in exercise of writ jurisdiction. It is not necessary that in each and every case a report from a handwriting expert be called for particularly when the court in itself is in a position to tally the signatures and to come to a definite conclusion itself. In view of the aforesaid facts and circumstances, I do not consider that it is a fit case for exercising discretionary jurisdiction. The petition is dismissed with the direction to the court below to proceed and decide the suit in accordance with law as expeditiously as possible preferably within a period of six months from the date of production of the certified copy of this order. _____________