Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 375 (RAJ)

Sukh Singh v. Ummed Singh

2019-02-01

VEERENDER SINGH SIRADHANA

body2019
JUDGMENT : Veerender Singh Siradhana, J. 1. Aggrieved of the order dt. 16th March, 2018, granting an application for examination of the signatures of the executor (Shri Chottu Singh) by State Forensic Science Laboratory, by the Court below; the petitioners have instituted the present writ application. 2. Learned counsel for the petitioner, Ms. Mumal Rajvi, reiterating the pleaded facts and grounds of the writ application, asserted that Late Shri Chottu Singh, resident of Village Malarna Dungar, District Sawai Madhopur, executed his Will on 11th December, 1967 and got it registered on 30th December, 1967. The executor of the Will bequeathed his property to the petitioner-defendant-Shri Sukh Singh. Shri Chottu Singh, passed away in the year 1983, i.e. after about 16 years of execution of the said 'Will'. According to learned counsel, for the Will was a registered. 3. 'Will', and therefore, there can be no doubt about the genuineness of signatures of the executor (late Shri Chottu Singh). Further, an application instituted by the respondent-plaintiffs, with the same relief, was already declined by Court below on 17th October, 2016, taking into consideration all the factual matrix of the case so also various legal opinions, which were referred to and relied upon by the counsel for the parties. Hence, granting an application in identical factual matrix for the same relief that was already declined at an earlier stage of the suit proceedings; is a gross error committed by the Court below for the principle of res judicata is also applicable to subsequent stages of same suit proceedings. In support of her contentions, learned counsel has relied upon opinions of the Apex Court of the land in the case of Satyadhyan Ghosal. & Ors. vs. Smit Deorajin Debi & Anr., AIR 1960 SC 941 and Y.B. Patil & Ors. vs. Y.L. Patil, (1976) 4 SCC 66 . 4. Per contra; learned counsel for the respondents while supporting the impugned order dt. 16th March, 2018, contended that there cannot be any dispute on the settled legal proposition that principle of res judicata is applicable at different stages of proceedings under same suit; however, the scope of enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters such decisions are some of the material and relevant factors which are to be considered before principle can be applied. 5. 5. Referring to opinion of the Apex Court of the land in the case of Erach Boman Khavar vs. Tukaram Shridhar Bhat & Anr. (2013) 15 SCC 655 , learned counsel would submit that interlocutory orders some like stay or injunction or appointment of receiver, are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the trial Courts usually take. Thus, the orders of the nature aforesaid, do not decided in any manner the merits of the controversy in issue in the suit and do not, put an end to it even in part, and therefore, such orders in the given factual matrix are capable of being altered or varied. 6. Learned counsel also pointed out that the nature of order involved herein where earlier the application was declined by the Court below on 17th October, 2016, was later on examined by the Court while granting the application vide impugned order dt. 16th March 2018, in altogether different factual matrix wherein the parties to the suit proceedings obtained two opinions of handwriting experts and the same were placed on record, which were contrary to each other. It was in this factual matrix the Court below vide impugned order dt. 16th March, 2018, granted the application of the respondents on a careful consideration of the singular facts of the case at hand and keeping in view the two contradictory reports brought on record by the parties of the private handwriting experts. Hence, the Court below committed no illegality much less material illegality so as to call for any interference by this Court in exercise of writ jurisdiction under Article 227 of the Constitution of India. Heard and considered. 7. Indisputably, an application with a prayer for examination, by State Forensic Laboratory, of the signatures on the 'Will' executed by late Shri Chottu Singh on 11th December, 1967, was declined by the Court below on 17th October, 2016. It is also not disputed that parties to the suit proceedings, thereafter, brought on record two expert opinions as to signature of late Shri Chottu Singh on the 'Will' dt. 11th December, 1967, and the two opinions of the handwriting experts, are contradictory. It is also not disputed that parties to the suit proceedings, thereafter, brought on record two expert opinions as to signature of late Shri Chottu Singh on the 'Will' dt. 11th December, 1967, and the two opinions of the handwriting experts, are contradictory. The Court below in the factual matrix aforesaid by detailed order impugned herein, granted the application for examination of signatures on the 'Will' dt. 11th December, 1967, by the State Forensic Laboratory, Jaipur. 8. In the case of Satyadhyan Ghosal & Ors. (supra), the Apex Court of the land while explaining the scope applicability of the principle of res judicata, observed thus: "8. The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, Whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a Court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher Court cannot at a later stage of the same litigation consider the matter again? 9. Dealing with this question almost a century ago the Privy Council in Maharaja Moheshur Singh vs. The Bengal Government, (1850) 7 M.I.A. 283 held that it is open to the appellate Court which had not earlier considered the matter to investigate in an appeal from the final decision grievances of a party in respect of an interlocutory order. That case referred to the question of assessment of revenue on lands. On December 6, 1841, judgment was pronounced by the Special Commissioner to the effect that 3,513 beeghas of land alone were assessable, and that the collections made by the Government on the other lands should be restored to the possessors. This judgment was affirmed by another Special Commissioner on March 8, 1842. On September 21, 1847, a petition for review on behalf of the Government of Bengal was presented to another Special Commissioner. That petition for review was granted. After due hearing the judgment of March 8, 1842, was reversed. This judgment was affirmed by another Special Commissioner on March 8, 1842. On September 21, 1847, a petition for review on behalf of the Government of Bengal was presented to another Special Commissioner. That petition for review was granted. After due hearing the judgment of March 8, 1842, was reversed. The question arose before the Privy Council whether the review had been granted in conformity with the Regulations existing at that time with respect to the granting a review. It was urged however on behalf of the Government of Bengal that it was then too late to impugn the regularity of the proceeding to grant the review and that if the appellant deemed himself aggrieved by it, he ought to have appealed at the time, and that it was too late to do so after a decision had been pronounced against him." 9. There can be no doubt about the principle as aforesaid. However, the factual matrix wherein the said principle was examined and explained was in a case where the landlords, who had obtained a decree for ejectment against the tenants on 10th February, 1949, were not able to get possession in execution proceedings thereof. The decree was obtained on 10th February, 1949 and soon thereafter, the Calcutta Thika Agency Act, 1949, came into force on 3rd March, 1949. The tenants made an application under Order 9 Rule 13 of CPC for setting aside the decree. The said application was declined on 16th April, 1949. An application that was made by the tenant under Sec. 28 of the Calcutta Thika Agency Act, 1949, on 9th September, 1949, alleging that they were Thika tenants; and hence, the decree made against them may be rescinded. The application was resisted by the landlord (Decree-holders) and the Munsif came to hold that applicants were not Thika tenants on 12th November, 1951, and therefore, the decree was not liable to be rescinded. Thus, the factual matrix where there was already an adjudication of rights of the parties to the litigation, was the subject matter wherein the observations were made by the Supreme Court as have been extracted hereinabove. 10. Thus, the factual matrix where there was already an adjudication of rights of the parties to the litigation, was the subject matter wherein the observations were made by the Supreme Court as have been extracted hereinabove. 10. In the case of Y.B. Patil (supra), the findings of the Assistant Commissioner and Deputy Commissioner regarding the question of appellant being strangers qua the land in dispute took a very restricted view of Section 79 of the Act dealing with the revision wherein the revision petition was dismissed for the High Court has declined to interfere in the order made in revision. In that factual matrix, the Apex Court of the land on a survey of the contextual factual matrix made those observations. Whereas the factual matrix of the case at hand is entirely different and distinguishable. 11. In the case of Erach Boman Khavar (supra), on a survey of earlier opinions the Apex Court of the land observed thus: "26. In the case of Arjun Singh (supra) the Defendant had approached this Court as his application under Order IX Rule 13 of the Code to set aside an ex parte decree passed against him had been dismissed as barred by res judicata. The question that basically arose before this Court was when an application is made under Order IX Rule 7 of the Code and the Court considers that there is not any good cause for the previous nonappearance and proceeds further with the suits and ultimately results in an ex parte decree, can a Court in dealing with applications to set aside the ex parte decree under Order IX Rule 13 reconsider the question as to whether the Defendant had a sufficient cause for non-appearance on the day in regard to which the application under Order IX Rule 7 had been filed. The Court referred to the decision in Satyadhyan Ghosal (supra) and quoted a passage from the said decision and thereafter took note of two submissions advanced by the learned Counsel for the Respondents therein which were to the effect that (1) an issue of fact or law decided even in an interlocutory proceeding could operate as res judicata in a later proceeding, and (2) in order to attract the principle of res judicata the order or decision first rendered and which is pleaded as res judicata need not be capable of being appealed against. Dealing with the same the Court observed thus: We agree that generally speaking these propositions are not open to objection. If the Court which rendered the first decision was competent to entertain the suit or other proceeding, and had therefore competency to decide the issue or matter, the circumstance that it is a tribunal of exclusive jurisdiction or one from whose decision no appeal lay would not by themselves negative the finding on the issue by it being res judicata in later proceedings. Similarly, as stated already, though Section 11 of the Code of Civil Procedure clearly contemplates the existence of two suits and the findings in the first being res judicata in the later suit, it is well established that the principle underlying it is equally applicable to the case of decisions rendered at successive stages of the same suit or proceeding. But where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable. 27. After so stating the three-Judge Bench proceeded to deal with different kinds of interlocutory orders and, in that context, observed that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the Court would be justified in rejecting the same as an abuse of the process of Court. There are other orders which are also interlocutory, but would fall into a different category. These are not directed to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation." 12. In the case of Chamkaur Singh vs. Mithu Singh, 2014 (1) Civ.C.C. 389 , relying upon the opinion of the Apex Court of the land and High Court observed thus: "In Thiruvengadam Pillai vs. Navaneethammal & Anr., 2008 (4) SCC 530 , the Hon'ble Supreme Court held as under: "When there is a positive denial by the person Kumar Parveen 2013.11.13 14:26 I attest to the accuracy and integrity of this document High Court, Chandigarh who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the Court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impression. Further, even in cases where the Court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. The Court should avoid reaching conclusions based on a mere casual or routine glance or perusal." 13. In view of Tarak Nath (supra), the Court is not an handwriting expert. The Court does it only through its visual experience. Ordinarily, the Court should not take upon itself the responsibility of comparing signatures when disputed, as in such matters technical expertise is necessary. In view of Tarak Nath (supra), the Court is not an handwriting expert. The Court does it only through its visual experience. Ordinarily, the Court should not take upon itself the responsibility of comparing signatures when disputed, as in such matters technical expertise is necessary. In view of the above discussion and the fact that the trial Court has to determine a fact and to give weight and see credibility of experts' opinion, the opinion of third government expert which may be an independent opinion may help the Court to break the stalemate and mitigate the conflict between the opinions of private experts giving conflicting opinions. Although the opinion of the third expert is not binding upon the Court, yet the trial Court being a Court of fact has to arrive at independent decision and opinions of experts are not binding upon the trial Court as the Court is undoubtedly an expert of experts The conflicting opinions from equal number of experts between two sides is a common scenario in our legal system. It is true that a party Kumar Parveen 2013.11.13 14:26 I attest to the accuracy and integrity of this document High Court, Chandigarh having a weak case concentrates on discrediting the witness by old tricks of "playing the man and not the ball". In the present case, since the parties are not opposed to the appointment of an independent handwriting expert, this Court in the peculiar facts and circumstances of the case deems it fit and appropriate that opinion of an expert of SFSL/Central Forensic Science Laboratory, Chandigarh (in short 'CFSL), which is a government agency would be necessary to resolve the conflict. 14. In view of above discussion as well as to do substantial justice and in the interests of justice, the impugned order dt. 07.05.2013 is set aside, the instant petition is allowed and application moved by the petitioner-defendant for sending the pronote and receipt in dispute for comparison to the SFSL/CFSL is allowed. The trial Court can summon the SFSL/CFSL expert for comparison of the questioned documents i.e. pronote and receipt with standard writing/signature and to check alteration or addition or may direct the authorities of the Laboratory to inspect the pronote and receipt in Court and submit report. The expenses to be assessed by the trial Court for comparison of the pronote and receipt in dispute shall be borne by the petitioner-defendant. 15. The expenses to be assessed by the trial Court for comparison of the pronote and receipt in dispute shall be borne by the petitioner-defendant. 15. Applying the principles deducible from the opinions referred to hereinabove; it is evident that the Court below granted the application of the respondents in the factual matrix wherein there are two contradictory reports of handwriting experts, brought on record of the contesting parties. In the factual matrix aforesaid, the Court below while granting the application for calling upon from an independent Governmental agency, the opinion of handwriting expert; cannot be construed to be suffering with any material illegality and/or irregularity so as to warrant any interference by this Court in writ jurisdiction under Article 227 of the Constitution of India. 16. In the result, writ application fails, and is, hereby dismissed. Interim order dt. 10th July, 2018, is vacated.