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2014 DIGILAW 1815 (RAJ)

Kalpana Lodha v. Jitendra Singh

2014-11-13

ARUN BHANSALI

body2014
JUDGMENT 1. - Heard learned counsel for the petitioner. 2. The petitioner is aggrieved by order dated 12.02.2014 passed by the Additional District Judge No.5, Jodhpur Metropolitan, whereby, the application filed by the petitioner under Section 45 of the Indian Evidence Act, 1872 (for short 'the Evidence Act') has been rejected. 3. The facts in brief may be noticed thus: the petitioner-plaintiff filed a suit seeking cancellation of sale deed. It was, inter alia, the case of the plaintiff that the power of attorney dated 17.04.2006 said to have been executed by her does not bear her signatures and, therefore, the sale deed executed based on the said power of attorney and subsequent transactions are all void and deserve to be cancelled. 4. The evidence was led by the plaintiff and the defendant also led their evidence. Whereafter, the present application under Section 45 of the Evidence Act was filed, inter alia, seeking examination of the signatures on the power of attorney by expert/FSL. 5. The application was opposed by the defendants and the trial court by its impugned order dated 12.02.2014 rejected the application on coming to the conclusion that in view of the fact that the evidence of the plaintiff and the defendants is already over, the application was not liable to be accepted. 6. It is submitted by learned counsel for the petitioner that in the facts and circumstances of the case, where the entire issue before the trial court is as to whether the power of attorney dated 17.04.2006 has been executed by the plaintiff or not, it was incumbent on the trial court to allow the application so as to get an expert evidence regarding the said aspect and the trial court was not justified in rejecting the application. It was further submitted that the reliance placed by the trial court on the statement of PW-3 Amit, plaintiff's son is wholly misplaced, as the said witness has not admitted the signatures of his mother. 7. I have considered the submissions made by learned counsel for the petitioner. 8. It was further submitted that the reliance placed by the trial court on the statement of PW-3 Amit, plaintiff's son is wholly misplaced, as the said witness has not admitted the signatures of his mother. 7. I have considered the submissions made by learned counsel for the petitioner. 8. It is no doubt true that the principal issue in the suit pertains to whether the power of attorney was executed by the plaintiff, but then the plaintiff herself was aware of the above aspect from the beginning and it was incumbent on the plaintiff to lead evidence in support of her contention including expert evidence in case the plaintiff desired to do so. 9. However, having failed to produce any expert evidence at her turn and, whereafter, after the evidence of the defendants is also over, the application under Section 45 of the Evidence Act has been filed at a highly belated stage was rightly rejected by the trial court inasmuch as any attempt to produce/obtain expert evidence at this stage of the suit would deprive the other side from any rebuttal and further having failed to lead the evidence at the appropriate stage, the petitioner cannot be permitted to restart the evidence all over again. 10. In that view of the matter, there is no substance in the present writ petition and the same is, therefore, dismissed. The stay petition is also dismissed.Petition Dismissed. *******