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Madhya Pradesh High Court · body

2016 DIGILAW 1035 (MP)

Shakun (Smt. ) v. Shashi Jain

2016-11-15

S.A.DHARMADHIKARI

body2016
ORDER 1. This writ petition under Article 227 of the Constitution of India has been preferred against the impugned order dated 12.8.2015 passed in Civil Suit No.21-A/2015 by which the First Civil Judge Class II, Ganj Basoda, District Vidisha (M.P.) whereby the application under section 45 of the Evidence Act read with Order 26 rule 10A of the Code of Civil Procedure, 1908 has been dismissed. 2. A suit for declaration to the effect that the father of the plaintiffs, husband of the defendant No.1 and father of defendants No.2, 3 was Chandmal s/o Shri Duli Chand, another son of Duli Chand is defendant No.4. In the suit, it is stated that Dhuli Chand died on 15.9.2004 leaving behind certain immovable property. In the said property, the plaintiff had ½ share and defendants No. 2 and 3 had ½ share. Since the partition had already took place, the defendant No.4 had no interest in the suit property and as such the suit was filed for declaration of the ½ share. 3. The written statement was filed by the defendants No.1, 2 and 3 in which it has been stated that the plaintiff had taken Rs.75,000/- as consideration of her share and has executed a document dated 4.10.2004 before the Panchas as such she is not entitled for any share. On the basis of the pleadings of the parties, the learned trial Court framed four issues on 22.9.2011 and an additional issue was framed on 25.11.2011 regarding release of her share. The evidence was led by both the parties. On 6.5.2013, an application under section 45 of the Evidence Act read with Order 26 rule 10A of the Code of Civil Procedure, was filed by the petitioner/plaintiff praying for calling handwriting expert to submit his report on the document dated 4.10.2004. Such application was vehemently opposed by the respondents by filing reply in which it has been stated that the application has been filed belatedly. 4. The contention of Shri Anand Bhardwaj, the learned counsel for the petitioner is that the learned trial Court dismissed the said application vide order dated 12.8.2015 on the ground that the said application has been filed at the fag end of the trial and that the cross examination has been conducted and the matter is at the stage of application. The contention of Shri Anand Bhardwaj, the learned counsel for the petitioner is that the learned trial Court dismissed the said application vide order dated 12.8.2015 on the ground that the said application has been filed at the fag end of the trial and that the cross examination has been conducted and the matter is at the stage of application. The learned counsel for the petitioner submitted that there is no specific method of proving a document under sections 47 and 67 of the Evidence Act but the document can be proved by several modes and one of the mode of examining a document is to get the same examined by the handwriting expert and seek his opinion. He further submitted that the trial Court erred in rejecting the application in as much the important factor to provide substantial justice to the parties cannot be taken away only on the ground that the suit is on the verge of finalization and the Procedural law is always meant to provide substantial justice and not to put hurdle in dispensation of justice. The learned counsel for the petitioner has relied on the judgment passed by the Division Bench of this Court in the case of Asharam and another v. Surat Singh Baghel and others [ 2011(1) MPHT 174 (DB)], in support of his contention. 5. Shri S.K. Shrivastava, the learned counsel for the respondents submitted that such kind of application is filed at the fag end of the conclusion of the trial just to delay the proceedings and to fill up the lacuna which is not at all permissible and as such the trial Court has rightly dismissed the application. 6. I have heard the learned counsel for the parties. 7. It is true that the plaintiff should be vigilant during the trial and should have moved the application earliest for proving the document by the handwriting expert. However, looking to the important aspect that the procedural law is always meant to impart substantial justice to the parties and not to put hurdles in dispensation of justice, then in case either of the parties prayed before the Court to provide an opportunity to prove a document by the handwriting expert the ground that the suit is on the verge of finalization cannot be a straight formula in not providing justice to the plaintiff. The learned trial Court has erred in rejecting the application in as much as it is the specific case of the petitioner/plaintiff that the document dated 4.10.2004 is a forged document and the signature on the document is not of her. The basic purpose of filing an application is to get the matter clear and as such calling of handwriting expert was necessitated in the circumstances of the case. According to me, the learned trial Court has committed an error in rejecting the application and refusing the permission to call the handwriting expert, therefore, this Court has no other option but to set aside the impugned order and accordingly, the same is set aside. 8. Resultantly, this petition succeeds and is hereby allowed. The application under section 45 of the Evidence Act read with Order 26 rule 10A of the CPC is allowed subject to payment of cost of Rs.3,000/- . It is directed that the trial Court shall allow further examination only in respect of the opinion of the handwriting expert. Since the plaintiff has already closed his evidence, the trial Court will not grant any more opportunity to adduce further evidence to the petitioner/plaintiff. The defendants shall be free to get the documents verified from the handwriting expert of their choice. The petitioner/ plaintiff shall deposit the cost within a period of fifteen days from today. 9. Petition stands allowed to the extent as indicated herein-above. No order as to cost. Anand Bhardwaj for petitioner; Sameer Kumar Shrivastava for respondents.