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2017 DIGILAW 229 (MP)

Purshottam Das Agarwal v. Shyamlata Bindal

2017-02-13

S.A.DHARMADHIKARI

body2017
ORDER 1. With the consent of both the parties, matter is heard finally. 2. In this petition under Article 227 of the Constitution of India, the petitioner has assailed order dated 16.1.2014 and 16.12.2013 passed by 7th Civil Judge class- II Gwalior in Civil Suit No.16-B/2013 whereby application filed by the petitioner/plaintiff under section 151 of the CPC has been rejected. 3. Brief facts of the case are that a suit for recovery of immovable property was filed by the petitioner/ plaintiff. The respondents/defendants moved an application before the trial Court under section 45 of the Evidence Act for examination by the handwriting expert of the disputed receipt, the said application was rejected. Being aggrieved, the respondents/defendants preferred Writ Petition No.349/2012 before this Court which was allowed and handwriting expert was appointed. Handwriting expert took the specimen signature for examination on 26.7.2013 thereafter case was fixed for submitting the report of handwriting expert. The trial Court suo motu without there being any application filed by the respondent/defendant and without giving any opportunity of hearing to the petitioner passed order dated 16.12.2013 (Annexure P-2) whereby on the oral objection of the respondent/defendant that handwriting expert Shri Anil Agarwal cannot be relied upon and therefore they do not want any examination by Shri Agarwal. It was further directed that on the next date of hearing respondent/defendant may produce another able handwriting expert at his own expense. 4. Being aggrieved the petitioner/plaintiff moved an application under section 151 of CPC on 4.1.2014 taking objection that handwriting expert Shri Anil Agarwal had already taken specimen signature and therefore, the appointment of another handwriting expert cannot be made and the report be called from the earlier handwriting expert. The reply was filed by the respondent/defendant to such application. The trial Court vide order dated 16.1.2014 (Annexure P-1) rejected application under section 151 of CPC filed by the petitioner. Being aggrieved, the petitioner has challenged order dated 16.1.2014 (Annexure P-1) and order dated 16.12.2013 (Annexure P-2) on the ground that both the orders are contrary to the provisions of CPC and same are liable to be set aside. The trial Court vide order dated 16.1.2014 (Annexure P-1) rejected application under section 151 of CPC filed by the petitioner. Being aggrieved, the petitioner has challenged order dated 16.1.2014 (Annexure P-1) and order dated 16.12.2013 (Annexure P-2) on the ground that both the orders are contrary to the provisions of CPC and same are liable to be set aside. It is further contended by counsel for the petitioner that handwriting expert was appointed on the instance of the respondent and having taken specimen signature for examination, the subsequent order passed on 16.12.2013 without any application from the side of the respondent/defendant and without giving opportunity of hearing to the petitioner is illegal and contrary to the law. The trial Court could not have granted permission to the respondent to appoint a new handwriting expert without there being any application. The learned trial Court also failed to consider the fact that vide order dated 26.7.2013 another application for appointment of new handwriting expert filed by the respondent was rejected. It is further contended by the petitioner that once application filed by the respondent was rejected on 26.7.2013 and the same having attained finality the question of recalling order dated 26.7.2013 does not arise. 5. On the other hand learned counsel for the respondent vehemently opposed the prayer of the petitioner and submitted that the trial Court has not committed any error and therefore the order passed by the trial Court deserves to be maintained and the present writ petition being devoid of merit and substance deserves to be dismissed. 6. Heard the learned counsel for the parties and after perusing impugned orders dated 16.1.2014 and 16.12.2013, this Court is of the considered view that trial Court has committed an error by allowing oral prayer of the respondent/defendant for appointment of new handwriting expert. Admittedly, no application duly supported by an affidavit was filed by the respondent/defendant. The trial Court had already rejected the application for appointment of new handwriting expert on 26.7.2013 and the same having attained finality and therefore the order could not have been recalled suo motu. In these circumstances, the trial Court fell in error by rejecting the application under section 151 of CPC filed by the petitioner. 7. Accordingly, the order dated 16.1.2014 (Annexure P-1) and order dated 16.12.2013 (Annexure P-2) are hereby quashed and set aside. In these circumstances, the trial Court fell in error by rejecting the application under section 151 of CPC filed by the petitioner. 7. Accordingly, the order dated 16.1.2014 (Annexure P-1) and order dated 16.12.2013 (Annexure P-2) are hereby quashed and set aside. The application filed by the petitioner under section 151 of CPC stands allowed. The stay of further proceedings granted by this Court on 6.2.2014 shall stand vacated. However, in the facts and circumstances of the case, if so advised the respondent is at liberty to file application for changing handwriting expert which shall be decided by the trial Court in accordance with law. The petition is disposed of with the aforesaid directions.