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2017 DIGILAW 1156 (MP)

Ramkrishn Sharma v. Sarita Sharma

2017-11-13

VIVEK AGARWAL

body2017
ORDER 1. Petitioner/plaintiff has filed this petition under Article 227 of the Constitution of India assailing the order dated 6.4.2017 passed by the Second Additional District Judge, Gwalior in Case No.46-A/2011, whereby an application under section 45 of the Indian Evidence Act to summon the handwriting expert to examine is handwriting on the disputed document with plaint and Vakalatnama has been rejected. 2. It is petitioner's contention that the said application has been wrongly rejected and such order is contrary to the law laid down by this Court in the case of L.S.Trading Company (M/s) and another v. Manish Mishra, as reported in 2010(III) MPWN 2 = 2010(4) MPHT 219 (DB). In the case of L.S.Trading Company (supra), Division Bench of this Court has held that even after an application was moved by the defendant to examine his signatures on the promissory note, which he had denied in the written statement, then also the trial Court could not have rejected such application, inasmuch as there is no bar in CPC on filing such application at the closure of the trial. In view of such case law, learned counsel for the petitioner submits that the application filed by petitioner should have been allowed. 3. It is an admitted fact that the plaintiff had filed his suit for declaration of registered sale deed dated 3.3.2011 as null and void. It is alleged that defendant No.2 and defendant No.1 in collusion executed sale deed in relation to the property of the ownership and possession of the plaintiff. 4. It is also an admitted position that plaintiff's evidence was closed and thereafter, when defendant submitted his evidence, he moved an application for examining the document in the hand of the handwriting expert and after such permission was given, handwriting examination was carried out and a report was filed on 21.11.2016. Thereafter, such handwriting expert was examined before the Court on 19.1.2017. Thereafter, he moved an application that in rebuttal to the defendant's evidence, he wants to examine the handwriting expert. 5. It has come on record that when the report of the handwriting expert was filed, no objection was raised by the plaintiff. On the contrary, after statements of such handwriting expert were recorded, then plaintiff filed an application under section 45 of the Evidence Act. 5. It has come on record that when the report of the handwriting expert was filed, no objection was raised by the plaintiff. On the contrary, after statements of such handwriting expert were recorded, then plaintiff filed an application under section 45 of the Evidence Act. It has also come on record that the plaintiff was aware of this fact that his signatures are not there on the concerned document namely; registered sale deed and, therefore, it was within his right to have examined handwriting expert when he was leading his evidence. Trial Court has held that if the plaintiff is again given an opportunity to examine the handwriting expert, then it will amount to re-opening of the case and it will become a vicious circle, inasmuch as thereafter the defendant shall ask for such opportunity and, therefore, the application as was filed by the plaintiff/petitioner has been rejected. 6. As far as the law laid down in case of L.S.Trading Company (supra), is concerned, it deals with the aspect of the examination of handwriting expert and he can be called for at any stage of the trial but there is no provision under the law that once the handwriting expert was asked to furnish report at the instance of the defendant and such report was filed without there being any protest from the plaintiff, then after examination of such expert, the plaintiff has a right to re-open his case to fill up the lacuna in his evidence. Since there is no provision under the law to permit any party to fill up the lacuna, the law laid down in the case of L.S.Trading Company (supra), has no relevance to the facts of the present case. 7. In view of such facts being on record that plaintiff had not availed the remedy of examining handwriting expert in his favour when plaintiff's evidence is going on, at this stage, after having failed to raise objection to the report of the handwriting expert produced by the defendant, now the stage of raising objection is over and trial cannot be allowed to fall in the spin of allegations and counter allegations. Since the plaintiff has opportunity to cross-examine such expert, therefore, there is no substance in the writ petition calling for any interference, inasmuch as the law does not permit filling up of the lacuna in the pleadings. Since the plaintiff has opportunity to cross-examine such expert, therefore, there is no substance in the writ petition calling for any interference, inasmuch as the law does not permit filling up of the lacuna in the pleadings. Thus, the petition fails and is dismissed.