Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 911 (MP)

Ayodhya Prasad v. Dayaram

2015-09-01

SUJOY PAUL

body2015
ORDER 1. Petitioner has challenged the order dated 15.3.2014, whereby his applications filed under Order 13 rule 10 and Order 16 rule 1 of the Code of Civil Procedure were rejected by the Court below. 2. The petitioner/defendant No.1 filed the said application under Order 13 rule 10 (Annexure P-6) by contending that between the plaintiff and defendant No.1, a partition had taken place on 27.10.1995. The factum of said partition was duly recorded by Assistant Settlement Officer on 27.10.1995. Plaintiff Dayaram put his thumb impression on the relevant document before the said Officer. However, during cross-examination the plaintiff denied about his thumb impression aforesaid. The petitioner accordingly prayed that original record be summoned from the concerned revenue Court. Another application under Order 16 rule 1 CPC is filed with a prayer to summon the handwriting expert to examine the thumb impression and signature etc. The petitioner stated that he is ready to pay the requisite charges for summoning the said expert. These applications are rejected by impugned order. The Court below rejected the said application by holding that whether it is thumb impression of the plaintiff or not can be established by leading evidence and examining certain persons. Plaintiff remained present in “Bandovast” proceedings or not, can be proved by producing relevant applications, notices, order sheets and “Vakalatnama”, etc. In view of this finding, the application preferred under Order 13 rule 10 CPC was rejected. Second application under Order 16 rule 1 CPC was rejected because first application under Order 13 rule 10 CPC was rejected. 3. Shri A.V. Bharadwaj contends that a legally known mode to establish something is adopted by the petitioner. It was not a mode unknown to law nor impermissible in law. If another mode is also permissible, it cannot be a ground to reject the claim. He relied on certain judgments. 4. Prayer is opposed by Shri R.P. Singh (Junior). He submits that scope of interference under Article 227 of the Constitution is limited. In absence of any jurisdictional error, interference be not made. He relied on AIR 1984 SC 38 (Mohd. Yunus v. Mohd. Mustaqim and others); 2003 SAR (Civil) 708 (Surya Dev Rai v. Ram Chandra Rai); 2001 SAR (Civil) 812 (Ms. Estralla Rubber v. Dass Estate Pvt.Ltd.) and MPJR 2006(I) 76 (Premchand Jain v. Ashok Kumar Agarwal). 5. No other point is pressed by the parties. 6. He relied on AIR 1984 SC 38 (Mohd. Yunus v. Mohd. Mustaqim and others); 2003 SAR (Civil) 708 (Surya Dev Rai v. Ram Chandra Rai); 2001 SAR (Civil) 812 (Ms. Estralla Rubber v. Dass Estate Pvt.Ltd.) and MPJR 2006(I) 76 (Premchand Jain v. Ashok Kumar Agarwal). 5. No other point is pressed by the parties. 6. A Division Bench of this Court in 1981 JLJ 388 (Ramibai v. Life Insurance Corporation of India), opined that signatures may be proved in any one or more of the following modes :- “(i) By calling the person who signed or wrote a document; (ii) By calling a person in whose presence the documents are signed or written; (iii) By calling handwriting expert; (iv) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written; (v) By comparing in Court, the disputed signature or handwriting with some admitted signatures or writing; (vi) By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it; (vii) By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person: A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e. g. by the scribe who signed on behalf of the executant; (viii) By other circumstantial evidence.” 7. The same view is followed in 1983 JLJ 474 (Kishan Prasad v. M.P. Government through Collector, Vidisha). 8. A plain reading of this judgment shows that the mode prayed for by the petitioner to prove the signature/thumb impression of plaintiff is in consonance with the judgment of Ramibai (supra). Thus, the prayer of petitioner was in accordance with law and judgment of this Court. In my considered opinion, the party must be given full freedom to prove his case in the manner he wants unless the said manner is impermissible. If another mode of proving something is available, that cannot be a ground to turn down the prayer made under a permissible mode. 9. So far the principle of law laid down in the judgment cited by Shri Singh is concerned, there is no quarrel on the said proposition. If another mode of proving something is available, that cannot be a ground to turn down the prayer made under a permissible mode. 9. So far the principle of law laid down in the judgment cited by Shri Singh is concerned, there is no quarrel on the said proposition. However, the apex Court in Shalini Shyam Shetty and another v. Rajendra Shankar Patil, [ (2010)8 SCC 329 ], opined that High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of Tribunals and Courts sub-ordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. 10. In the present case, the request of the petitioner was in consonance with law. It was based on relevant considerations and parameters. Despite that, the Court below has rejected it, which shows that the relevant considerations have escaped notice of the Court below. Thus, the order impugned suffers from procedural impropriety and perversity. 11. Resultantly, petition is allowed. The impugned order is set aside. The applications filed under Order 13 rule 10 and Order 16 rule 1 of the Code of Civil Procedure are allowed. Learned Court below is directed to proceed from the said stage in accordance with law.