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2016 DIGILAW 39 (HP)

Kuldeep Singh v. Bhag Singh

2016-01-05

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This petition is instituted against the order, dated 31.08.2015, rendered by the learned Civil Judge (Senior Division), Nalagarh, H.P. in C.M.A. No. 596 of 2015, titled as Bhag Singh vs. Kuldeep in Civil Suit No. 155-1 of 2013. 2. Key facts necessary for the adjudication of this petition are that the respondents/plaintiffs (hereinafter referred to as 'the plaintiffs' for the sake of convenience) have filed a suit for specific performance of contract on the basis of agreement, dated 21.07.2015 with respect to the land measuring 3 bighas 6 biswas, comprised in Khewat Khatauni No. 286/299, Khasra Nos. 1306/1193, being 66/106 share out of total land measuring 5 bighas 6 biswas, situated in village Bhud, Pargana Dharampur, Tehsil Nalagarh, District Solan, H.P. against the petitioners-defendants (hereinafter referred to as 'the defendants' for the sake of convenience). The suit was contested by the defendants. The defendants have moved an application under section 45 of the Indian Evidence Act for sending the signatures of the plaintiffs for comparing their signatures on the agreement, dated 22.07.2005, with their admitted signatures on plaint alongwith affidavit and power of attorney. The application was dismissed by the learned trial Court on 31.08.2015, hence this petition. 3. According to the averments made in the application, the plaintiffs have disputed and denied their signatures on agreement, dated 22.07.2005, inspite of the fact that the plaintiffs have put their signatures on the agreement, dated 22.07.2005, as witnesses. The plaintiffs have filed a suit for specific performance of contract on the basis of false, forged, manipulated and fabricated document, i.e., alleged agreement, dated 21.07.2005. According to the defendants, in these circumstances, it was necessary to send the signatures of plaintiffs appearing on the agreement, dated 22.07.2005, for comparison with their admitted signatures on plaint, affidavits and power of attorney etc. The defendants have also sought directions to the plaintiffs to give their specimen signatures in the presence of trial Court for comparison with the disputed signatures on agreement, dated 22.07.2015. 4. The application was contested by the plaintiffs. It was specifically denied that the plaintiffs have filed the suit on the basis of false, forged, manipulated and fabricated agreement, dated 21.07.2005. According to the plaintiffs, the defendants have entered into an agreement with them on 21.07.2005 of the suit land for a total sale consideration of Rs. 18,64,500/ and have received a sum of Rs. It was specifically denied that the plaintiffs have filed the suit on the basis of false, forged, manipulated and fabricated agreement, dated 21.07.2005. According to the plaintiffs, the defendants have entered into an agreement with them on 21.07.2005 of the suit land for a total sale consideration of Rs. 18,64,500/ and have received a sum of Rs. 2,00,000/ in cash from the plaintiffs and further received a sum of Rs. 7,00,000/ on 20.09.2005 and Rs. 8,00,000/ on 30.11.2005 in the presence of witnesses and agreed to execute the sale deed of the suit land in favour of the plaintiffs. The defendants have willfully and intentionally sold the suit property despite the injunction order of this Court. The application has been filed by the defendants just to delay the proceedings. The present case has no concern with agreement, dated 22.07.2005. The suit was instituted in the year 2007. It was pending for the evidence of the defendants since 19.07.2013. The defendants have been granted more than 5 opportunities. 5. The basis for filing the suit is agreement, dated 21.07.2003. The defendants have set up agreement, dated 22.07.2005, in which the plaintiffs have appeared as marginal witnesses. Plaintiff has appeared as PW1. He has referred to agreement, dated 21.07.2005, Ex. PW1/A. The plaintiffs have led their evidence and the defendants have also led their evidence. Simply for the reason that the plaintiffs have denied their signatures on agreement, dated 22.07.2005, it will not make out a case in favour of the defendants to submit alleged signatures of plaintiffs on agreement, dated 22.07.2005, to Handwriting Expert. In view of this, the defendants have miserably failed to make out a case for sending signatures of the plaintiffs, allegedly put by them on agreement, dated 22.07.2005 for comparison thereof with their admitted signatures on plaint, affidavits and power of attorney. 6. Their Lordships of the Hon'ble Supreme Court in Srichand K. Khetwani vs. State of Maharashtra, AIR 1967 Supreme Court 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 an handwriting expert in every case of disputed writing. 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 an 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 Sup.C.I./6610 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 acknowledgement 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." 7. There is neither any illegality nor any perversity in the order, dated 31.08.2015, passed by the learned Civil Judge (Senior Division), Nalagarh in C.M.A. No. 596 of 2015, titled as Bhag Singh vs. Kuldeep in Civil Suit No. 1551 of 2013B. Accordingly, the petition is dismissed, so also the pending application(s), if any. No costs.