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2014 DIGILAW 69 (CAL)

Somnath Mondal v. Murari Mondal

2014-01-30

SUDIP AHLUWALIA

body2014
JUDGMENT : Sudip Ahluwalia, J. This revisional application is directed against the order No. 61 passed by the Learned Civil Judge (Senior Division) in Title Suit No. 78 of 2004 of his Court on 11.11.2010. In passing the impugned order, the Ld. Judge had been pleased to reject an application filed on behalf of the petitioners, who are the defendants in the suit, praying for having the alleged signatures put by one of the plaintiffs to be examined by the Hand-Writing Expert. It may be mentioned that the alleged signatory had denied the signatures during his evidence as PW-1, on being confronted with the relevant documents. 2. It transpires that the aforesaid application was resisted on behalf of the plaintiffs/opposite parties basically on the grounds that it was filed at a belated stage and was actually designed to delay and drag the suit, and that there was actually no need for examination of the alleged signature of PW-1 on the documents including an Angikar Patra relied upon by the petitioners/defendants. These are the gist of the objections, as seen on perusal of the written objections, being Annexure-F to the application, filed against the petitioners application for examination of a Plaintiff's signatures by the Hand-Writing Expert. 3. Now, the Ld. Court below has in its impugned order specifically noted certain submissions in this regard raised by the Ld. Advocate for the opposite parties/plaintiffs which incidentally were not mentioned in the actual written objections. The relevant observations of the Trial Court in this regard are: "....Two documents are filed on behalf of the defendants along with firisty. Ld. Advocates of both the parties are present by filing haziras. The record is taken up for hearing. Heard both sides. Ld. Advocate for the defendants submits that previously between the parties sitting took place for the settlement of share in the suit property with the interference of the Gram Panchayat and other respectable persons of the locality and the suit property was measured by the Amin and he prepared a sketch map pointing out the share of both the parties to the suit. He further submits that Angikar Patra was prepared and in the said Angikar Patra contains the signatures of the plaintiffs. He submits that during evidence P.W.1 refused his signature on the sketch map prepared by the Amin. He further submits that Angikar Patra was prepared and in the said Angikar Patra contains the signatures of the plaintiffs. He submits that during evidence P.W.1 refused his signature on the sketch map prepared by the Amin. He submits that both the documents are very vital for the proper adjudication of the suit and the signature appearing on those two documents should be examined and compared by the Govt. Hand writing Expert with the signature of the plaintiffs after obtaining those in open Court. Ld. Advocate for the plaintiffs prays for rejection such baseless petition stating that the plaintiffs have filed the suit before the Court for proper adjudication of their claim and prayer. He submits that P.W.1 has admitted the signature of plaintiffs in blank paper. He submits that Panchayat office or village salish do not take place of the Court of law and many illegal things happened in such places. He submits that defendants are trying to delay the disposal of the suit on the pretext of examination of signatures of the plaintiffs by Govt. hand-writing expert. He prays for rejecting such prayer. Perused the materials on record coupled with two separate documents filed by the defendants. This Court shares the same view with the view expressed by the Ld. Advocate for the plaintiff. This Court also observes that plaintiffs have come before the Court for settlement of their claim and they are not bound abide by any decision made by the panchayat or village Salish. Because those two are not empowered to settle any right, title and interest of the citizens and that is the sole duty of the Court. Now considering all such facts and circumstances and as well as considering the materials on record, I find no justification for examination of signature of the plaintiffs by Govt. hand writing expert. Accordingly the prayer of petitioner dated 31.7.09 is rejected. Thus the petition dated 31.7.10 is rejected on contest but without costs. The documents filed by the defendants be kept with the record. 4. hand writing expert. Accordingly the prayer of petitioner dated 31.7.09 is rejected. Thus the petition dated 31.7.10 is rejected on contest but without costs. The documents filed by the defendants be kept with the record. 4. Now on perusal of not only of the total averments in the written objections Annexure F already referred to earlier, against the petition for examination of signatures by the Hand Writing Expert examination, but also in the impugned order itself, it no transpires that there is no categorical admission anywhere that the alleged signatures of PW-1 on the were actually put by him, as otherwise specifically stated by him in his cross-examination. On the other hand, the submissions before the Ld. Court below aimed at opposing the petitioners' application clearly seek to underscore the contentions that the witness's signature had been obtained on some blank paper, or that the purported document/Angikar Patra allegedly containing such signatures has little value since Panchayat office or Village Salish do not take place on the Court of Law and many illegal things happened in such places. 5. The Ld. Court below also agreed with such submission by observing that "plaintiffs have come before the Court for settlement of their claim and they are not bound to abide by any decision made by the Panchayat or Village Salish, those are not empowered to settle any right, title and interest of the citizens which is the sole duty of the Court." 6. The approach adopted by the plaintiffs/opposite parties of discrediting the validity or binding force of any such agreement allegedly arrived at by the parties before the Panchayat or any other Village Authority not competent to effect the same outside of Court is altogether different from a specific assertion that a person's signatures on the documents of settlement are not genuine. The first assertion essentially impeaches the legal validity of the settlement document, assuming that its factual contents are true. But the next assertion denies the genuineness of the contents, and thus the genuine existence of the document itself. To this extent, the plaintiffs would appear to be trying to blow hot and cold in the same breath. The first assertion essentially impeaches the legal validity of the settlement document, assuming that its factual contents are true. But the next assertion denies the genuineness of the contents, and thus the genuine existence of the document itself. To this extent, the plaintiffs would appear to be trying to blow hot and cold in the same breath. If their assertion is that any settlement in the Panchayat office or Village Salish has no legal sanctity, then it also amounts to a tacit admission that a person's signatures do at least exist on the disputed documents of such settlement, whatever may have been the actual conditions or circumstances otherwise, under which those signatures were obtained. But if a partys signature on a document is itself specifically denied, then any submission opposing the legal sanctity, binding force or validity of such document of settlement becomes altogether redundant. This certainly appears to be a contradictory stance adopted by the plaintiffs/opposite parties, since this Court has verified from the specific pleadings contained in Para 11 of the Written Statement filed on behalf of the defendants/petitioners (Annexure D) in its relevant internal pages 4 and 5, wherein detailed allegations pertaining to the alleged village level settlement between the parties ending in the form of the disputed Angikar Patra have been graphically made out. The contention of the petitioners defendant in this regard is that the plaintiffs/opposite parties had intentionally suppressed such material facts in their plaint while filing the Suit. 7. Now, there is nothing on record to indicate that after the written statement came on record, the plaintiffs filed any kind of additional amended pleadings to specifically deny the averments in the aforesaid Paras 4 & 5 of the same. In this view of the matter, after the PW-1 specifically denied his alleged signatures on the questioned documents, reference of the same for an examination by the Expert would not have been inappropriate, howsoever invalid or non-est the document itself might have otherwise been in the eyes of law. 8. This Court therefore, does not agree with the observations of the Ld. Court below in their entirety. It is of course, undisputed that the application for examination by the Hand Writing Expert did come at a belated stage, when evidence in the suit had already commenced. 8. This Court therefore, does not agree with the observations of the Ld. Court below in their entirety. It is of course, undisputed that the application for examination by the Hand Writing Expert did come at a belated stage, when evidence in the suit had already commenced. The correct procedure would have been for both sides to tender their respective documents in before each other at the earlier stages of Discovery, Inspection and Admissions etc. in the suit. If at that stage the signatures were to be denied by the plaintiffs, a similar application for examination by the Hand Writing Expert would not have appeared belated at all. But that proper course does not appear to have been adopted in the Ld. Court below and, in all fairness, both sides would are equally to blame for such omission. 9. In view of the above observations put on record, it is held that the decision of the Ld. Court below disallowing the prayer for examination of the disputed signature of PW-1 was improper. In essence the Ld. Court below failed to exercise the jurisdiction vested in it and by refusing the prayer of the defendants albeit at a late stage, would appear to have caused miscarriage of justice. The decision in "Kuresha Khatun v. Moinuddin Ansari" [C.O No. 3688 of 2007 Decided on 6/4/2011] cited on behalf of the opposite parties to the effect that an order passed by the lower Court below, even if wrong, cannot be interfered with under Article 227 since it was made within the jurisdiction of that Court, has scant application to the facts and circumstances of the present case. 10. The revisional application is accordingly allowed on contest without costs. The impugned order passed by the Ld. Court below is accordingly set aside, and the application of the petitioners/defendants for examination of the disputed signature denied by the PW-1 by a Hand Writing Expert is allowed, but subject to Costs amounting Rs. 2000/- in favour of the plaintiffs/opposite parties, to compensate for the delay occasioned. The payment shall be made by the petitioners to the opposite parties in the Ld. Court below within 15 days of communication of this Order, after which appropriate orders in consequence of the aforesaid petition of the petitioners shall be passed. In the event of non-payment of this Cost, the concerned application need not be favoured any further. 11. The payment shall be made by the petitioners to the opposite parties in the Ld. Court below within 15 days of communication of this Order, after which appropriate orders in consequence of the aforesaid petition of the petitioners shall be passed. In the event of non-payment of this Cost, the concerned application need not be favoured any further. 11. It is further made clear that nothing in this order is to be construed as legitimising the legal validity of the disputed documents/Angikar Patra and the plaintiffs would be at liberty to assail the legal validity of the same irrespective of the result of examination by the Hand Writing Expert. Revisional application is allowed.