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2016 DIGILAW 33 (HP)

RAM SINGH v. HEM SINGH

2016-01-04

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This petition is instituted against the order dated 26.11.2015 rendered by the Civil Judge (Junior Division), Chachiot at Gohar in CMA No. Nil in Civil Suit No. 2/2010. 2. Key facts necessary for the adjudication of this petition are that respondent-plaintiff has instituted a suit for permanent prohibitory and mandatory injunction against the petitioners-defendants in respect of Abadi Deh as detailed in the plaint with the allegations that he has purchased this land from petitioner No. 1 and the writing of the same was executed by Ram Singh in presence of witnesses and Vice President of the Gram Panchayat Chailchowk. 3. The suit was contested by the defendants by filing written statement. An application has been filed under section 45 of the Indian Evidence Act to ascertain the correctness and genuineness of the documents. It is stated in the application that plaintiff has produced false documents, i.e. Ex. PW-1/A and Ex. PW-1/B. Defendant wanted to send the documents Ex. PW-1/A and Ex. PW-1/B for expert opinion to verify the genuineness of the same. 4. The application was contested by the plaintiff. It is averred in the reply that in the written statement it is nowhere stated that Ex. PW-1/A and Ex. PW-1/B have been written by DW Sukh Ram. Rather defendant has admitted in his cross-examination that Ex. PW-1/A was got written by him. Thus, the defendant has admitted the execution of documents, i.e. Ex. PW-1/A and Ex. PW-1/B. There is no averment of forgery in the written statement filed by the defendant/applicant. 5. Their Lordships of the Hon'ble Supreme Court in Srichand K. Khetwani vs. The State of Maharashtra, , AIR 1967 SC 450 have held that examination by handwriting expert is not necessary in every case of disputed writing and no adverse inference can be drawn for not obtaining expert's opinion in such case. Their Lordships have held as under: "[8] Karmik's statement that the appellant had written the endorsement on the postal receipt has been accepted by the High Court. It is not necessary to examine a handwriting expert in every case of disputed writing. The investigating officer stated that he did not send the specimen writing of the appellant for comparison with the endorsement on the postal receipt as he could not secure admitted writings of the appellant though he tried his best to obtain his admitted handwritings. It is not necessary to examine a handwriting expert in every case of disputed writing. The investigating officer stated that he did not send the specimen writing of the appellant for comparison with the endorsement on the postal receipt as he could not secure admitted writings of the appellant though he tried his best to obtain his admitted handwritings. He was not further questioned to explain why he considered it necessary to have admitted writings of the appellant in order to obtain the opinion of the handwriting expert about the disputed writing when specimen writings of the appellant were available. The explanation of the investigating officer seems to have been on account of practice. It appears from his statement that he sent certain questioned documents along with the admitted handwritings and specimen handwritings, signatures and initials of accused Nos. 1 and 2 to the Government Examiner of questioned documents. The practice may be sound or not but the bona fides of the conduct of the investigating officer cannot be questioned. The High Court, however, further considered that the material provided by the writing on the acknowledgment receipt was very scanty and the investigating officer might have felt that the subsequent handwriting would be feigned or disguised and that any comparison with the same would be deceptive. Such considerations might have been in the mind of the investigating officer but he had not stated them to be his reasons for not obtaining the opinion of the handwriting expert. The High Court cannot be said to have been in error in taking these further reasons into consideration and holding that no adverse inference can be drawn against the prosecution from the fact that the opinion of the handwriting expert has not been obtained with respect to the endorsement on the acknowledgment receipt." 6. Since the applicant/defendant himself has admitted the execution of agreement dated 9.10.2009 Ex. PW-1/A and receipt Ex. PW-1/B, the application filed under section 45 of the Indian Evidence Act was wholly misconceived and has rightly been rejected by the trial court. There is neither any illegality nor any perversity in the order dated 26.11.2015. 7. Accordingly, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.