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2018 DIGILAW 142 (MP)

Ramswaroop v. Harko

2018-02-05

VIVEK AGARWAL

body2018
ORDER 1. Petitioner has filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 9.10.2013 passed in Civil Suit No. 94A/2002, passed by the Court of First Civil Judge Class-2, Dabra, District Gwalior. Vide impugned order, an application moved by the present petitioner/plaintiff under the provisions of Order 16 rules 1 and 2 of CPC read with section 45 of the Evidence Act has been disallowed on the ground that the plaintiff did not choose to apply for calling record of the handwriting expert earlier. 2. It is petitioner's contention that such act of the plaintiff/petitioner in not calling the report of the handwriting expert at earlier point of time cannot be deemed to be not genuine, inasmuch as this Court in the case of Jai Narayan v. Satya Narayan and others, as reported in 1991 JLJ 428 , has held that if the defendant adduces handwriting expert's report in his evidence, plaintiff should be allowed to produce evidence in rebuttal. Learned counsel has drawn attention of this Court to para 7 of the aforesaid judgment, wherein the ratio is that when a Court grants permission to a party to produce handwriting expert to prove the handwriting and signature on a document, which the former party has denied, the trial Court shall see that the reports of the handwriting experts are received on both the sides within a period of six weeks from today and for that the parties shall be ready and shall give their specimen signatures. 3. Reliance has also been placed on the judgment of the Division Bench of this Court in the case of L.S.Trading Company Gwalior and another v. Manish Mishra as, reported in 2010(III) MPWN 2 = 2010 (4) MPLJ 228 , wherein in paras 4 and 5 the ratio is that the defendants/petitioners voluntarily closed their evidence and at the stage of final arguments an application under section 45 of the Evidence Act was filed to get the disputed signature examined by the handwriting expert. The Court held that the doors of justice cannot be shut merely on the ground that the application was moved by defendants at the fag end of the trial. 4. The Court held that the doors of justice cannot be shut merely on the ground that the application was moved by defendants at the fag end of the trial. 4. Petitioner has also placed reliance on the judgment of the Division Bench of this Court in the case of Usha Sharma (Smt.) v. Maharaj Kishan Raina and another as reported in 2010 (I) MPWN 94 , wherein the ratio is that when opportunity to one party for filing expert report was provided, the opposite party also be provided such opportunity. 5. On the other hand, learned counsel for the respondents has placed reliance on the judgment of this Court in the case of Manaklal v. Nandlal as reported in 2000 (II) MPWN 152 , wherein the ratio is that when witness was not called with documents at appropriate stage, Court is not bound to call or re-call it when even certified copies have not been produced of the public documents. 6. The admitted facts of the case as are apparent from the record is that plaintiff has filed a suit for declaration and permanent injunction. It is plaintiff's case that the suit property consists of 2/3rd portion in the name of Punia Bai and plaintiff Ramswaroop and 1/3rd portion was in the name of Ishwariya, husband of defendant No. 1 Harko. According to plaintiff, Ishwariya had executed a Will date15.8.1979 in favour of plaintiff Ramswaroop alienating his property in favour of Ramswaroop. This fact was denied by the defendants and it is mentioned in the written statement that any Will was executed in favour of Ramswaroop on 15.8.1979. In fact, it is mentioned that after death of Ishwariya, names of defendants No. 1 to 4 have already been mutated in the revenue records. It is specifically mentioned that no Will was executed by Ishwariya in favour of the plaintiff and the plaintiff has prepared a forged and fabricated document. 7. It is also an admitted position that plaintiff's evidence was over. He did not examine the expert to prove signatures of Ishwariya on the said Will as was denied by the defendants and thereafter defendants led their evidence and had examined an expert to rebut the signatures of Ishwariya on the so called Will. 7. It is also an admitted position that plaintiff's evidence was over. He did not examine the expert to prove signatures of Ishwariya on the said Will as was denied by the defendants and thereafter defendants led their evidence and had examined an expert to rebut the signatures of Ishwariya on the so called Will. At the time of appointment of this expert, no objection was taken by the plaintiff and after the report of the handwriting expert was produced, same was put to test by cross-examining the handwriting expert. In fact, defendants had produced the report of the handwriting expert from the concerned Court of Dabra, where a criminal case is pending and produced it before the Court and also mentioned in their reply that earlier a Civil Revision No. 2/2012 - Ramswaroop v. Narayan Singh was filed in which vide order dated 26.6.2012 the Court had directed to decide the case within a period of six months and plaintiff has failed to avail the remedy in his turn of evidence, therefore, the application being not bona fide should be rejected. 8. Plaintiff's insistence on filing the evidence in rebuttal by placing reliance on the judgments of this Court in the case of Jai Narayan (supra), is in different context. In the case of Jai Narayan (supra), the plaintiff had instituted a suit for declaration of title and for permanent injunction against defendants No. 1 to 4, who executed a sale-deed on 19.11.1985 in favour of defendant No. 5 in relation to the suit house. The ddefendants denied the genuineness of the document and the signatures of defendant No. 1 and his father, on the said document. The plaintiff examined himself to prove the document and the signatures not only of the plaintiff but also of the defendant No. 1 and his father on the said document. Thereafter, defendant No. 5 had moved an application under Order 16 rule 1 read with Order 18 rule 2 (4) of CPC for an opportunity to produce handwriting expert. That application was dismissed. Thereafter revision was filed in the High Court, which was disposed of with a direction to the trial Court to consider the relevancy of the evidence and thereafter again the application was rejected on the ground that defendant No. 5 was not a party to the documents. That application was dismissed. Thereafter revision was filed in the High Court, which was disposed of with a direction to the trial Court to consider the relevancy of the evidence and thereafter again the application was rejected on the ground that defendant No. 5 was not a party to the documents. Thereafter, defendants No. 1 to 4 moved an application and prayed for permission to produce handwriting expert. This application was allowed by the trial Court and in this backdrop, in para 7 it is held that when a Court grants permission to a party to produce handwriting expert to prove the handwriting and signatures on a document, which the former party has denied, the trial Court shall see that the reports of the handwriting expert are received on both sides. In the present case, facts are different. Plaintiff had filed a suit on the basis of Will, signatures on the Will were denied by the defendants, plaintiff did not take any steps to prove the signatures of the author of the Will on the said document and thereafter in rebuttal defendants produced expert evidence, which was sought to be rebutted by the plaintiff. Plaintiff despite categorical denial in the written statement did not take any step to file evidence and examine an expert to prove signatures of Ishwariya on the Will. Therefore, the ratio of the judgment in the case of Jai Narayan (supra), is of no help to the petitioner. 9. Similarly, in the case of Smt. Usha Sharma (supra), the facts were that a report of the handwriting expert was filed by the defendant No. 1. After considering the report, the petitioner also moved to prove an opportunity to file a report in rebuttal and in that backdrop, the Division Bench of this Court has held that though it is true that some times cross-examination of the expert concerned with the help of another expert may serve the purpose but not always and on the principle of natural justice, party ought not to and cannot be denied an opportunity of the similar nature. But the fact is that in the present case petitioner did not avail the opportunity in his own turn and when the witness of the defendants was examined before the Court, then raised such objection. But the fact is that in the present case petitioner did not avail the opportunity in his own turn and when the witness of the defendants was examined before the Court, then raised such objection. In fact, it was open to the plaintiff to have objected to the report of the expert as soon as it was brought on record and not at the stage when the expert was already examined before the Court and in this regard, the facts of the present case are different from the case of Smt.Usha Sharma (supra). 10. In the case of L.S.Trading Company Gwalior (supra), the facts were that the plaintiff had filed a suit for recovery of certain amounts against the petitioners/defendants. Petitioners by filing written statement refuted the plaint's averments and denied the execution of the document as well as signature on the disputed document of the promissory note. The learned trial Court thereafter framed necessary issue and parties let their evidence. Thereafter the case was fixed for final arguments. At this juncture application was filed under section 45 of the Evidence Act by the defendants/petitioners to get the disputed signatures examined by examining the handwriting expert but such application was rejected and this backdrop, the High Court held that though this exercise ought to have been done by the plaintiff but if defendants have moved an application under section 45 of the Evidence Act to get the handwriting examined, in absence of any specific bar in the Civil Procedure Code, the High Court held that the application was arbitrarily dismissed without applying the mind. Accordingly, from the aforesaid case, it is evident that defendants moved an application to prove their rebuttal and that application was dismissed and in that backdrop the application was allowed. In all three cases cited above, the issue of the order in which the evidence is to be led and the impact of section 135 of the Evidence Act has not been discussed. 11. Section 135 of the Evidence Act merely provide that the order in which witnesses are produced and examined shall be regulated by law and practice for the time being relating to civil and criminal procedure respectively. It was in fact open to the plaintiff to prove his case. 11. Section 135 of the Evidence Act merely provide that the order in which witnesses are produced and examined shall be regulated by law and practice for the time being relating to civil and criminal procedure respectively. It was in fact open to the plaintiff to prove his case. In fact, it is not the case of the plaintiff that he was taken by surprise by production of the report of the expert by the defendants and therefore the trial Court should have exercised its discretion in favour of the plaintiff to produce evidence in rebuttal. But in the present case, defendants from the beginning denied the signatures of Ishwariya on the Will and therefore when the expert was produced by the defendants, there was no element of surprise and the plaintiff cannot be allowed to examine an expert to fulfill the lacuna in his evidence, inasmuch as admittedly plaintiff/petitioner was not diligent to produce evidence of what he was required to prove in the light of the specific denial in regard to signatures on the Will by the defendants. Thus, the ratio of none of the three judgments cited above on behalf of the plaintiff are applicable to the facts of the present case, inasmuch as facts of those cases were different, circumstances were different and in none of the cases cited by the petitioner, it is the case that despite lack of due diligence by the plaintiff, chance of rebuttal was extended to the erring party. Principle of natural justice will apply where the party seeking enforcement of his right has been diligent and therefore should not be allowed to suffer on account of chance, surprise, circumstance. Thus, the petitioner has failed to make out a case for interference in the impugned order and he can not be allowed to fulfill the lacuna in his own evidence and at best he can cross-examine the witnesses. 12. In the aforesaid backdrop this petition does not call for any interference in the impugned order in the light of the law laid down by this Court in the case of Manaklal (supra), wherein it has been held that inherent jurisdiction of the Court is a provision for safeguarding justice in fit cases. Law does not help the indolents. Accordingly, petition fails and is dismissed.