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Madhya Pradesh High Court · body

2019 DIGILAW 765 (MP)

Awadh Narayan Tripathi v. Roopnarayan

2019-11-05

VISHAL MISHRA

body2019
JUDGMENT : Heard finally with consent. 1. The present petition has been filed by the petitioner challenging the order dated 18.7.2019 passed 1st Civil Judge, Class-II, Ashoknagar to 3rd Additional Judge, Ashoknagar District Ashoknagar (M.P.) in Civil Suit No.27A/2012, whereby the application filed by the petitioner under Order 16 Rule 1 & 2 read with Section 151 CPC has been rejected. 2. Learned counsel for the petitioner has submitted that the learned trial Court has failed to take into consideration the admitted signature of late Durgaprasad in Civil Suit No.211A/1989 filed by Pramod Kumar, wherein late Durgaprasad has submitted the written statement and the statement in chief which was duly signed by him, the Vakalatnama of the counsel having his signature. The aforesaid documents on which the signature of late Durgaprasad was apparent are certified copies of the documents and were not taken into consideration by the learned trial Court while dismissing the application. It is alleged that late Chintamani, late Durgaprasad and Ganeshram are the real brothers sons of late Shobharam. They were having ancestral agricultural land and other properties, that was divided in all the three brother with mutual consent and the panji was duly signed before the Tehsildar and thereafter Tehsildar passed the order. During the lifetime of Chintamani and late Durgaprasad, there was no challenge to the mutation panji and partition, but after the death of late Durgaprasad his legal representative filed a suit for declaration of right and permanent injunction with respect to the same land which was also divided by all the three brothers. It is further submitted that one Pramod Kumar S/o Shri Shantilal filed a civil suit against late Durgaprasad which was registered as civil Suit No.211A/1989 for specific performance and permanent injunction and in the said Civil Suit Durgaprasad engaged Shri Shyam kishore Saxena as his counsel who has submitted his written statement under Order 18 Rule 4 CPC on affidavit and reply to the applications were filed during the proceedings of the Civil Suit. In the present Civil Suit, as the signatures on the mutation panji dated 07.07.1987 were disputed by the plaintiffs and the defendant No.1, present petitioner has filed an application under Order 16 Rule 1 and 2 read with Section 151 CPC for calling the report of the handwriting expert of comparison of signatures of Durgaprasad on the written statement another documents as the signature of late Durgaprasad were appearing on the certified copies of the documents which has been obtained by the defendant and were filed alongwith the application. It is alleged that once there is denial by the plaintiffs of the signature of late Durgaprasad, therefore, the signature are required to be compared with the other signatures of Durgaprasad who are very well in existence in the trial Court in Civil Suit No.211A/1989. It is alleged that learned trial Court has not taken into consideration all the aforesaid documents and has rejected the application only on the ground that there is no admitted document on record which could show the signature of Durgaprasad for comparison. The plaintiffs have specifically denied the signature of late Durgaprasad on all the documents filed by the defendants alongwith the application. Thus, in absence of any admitted signatures of late Durgaprasad on record no direction can be issued for verification of signature. It is further submitted that aforesaid documents are public documents and are certified copies of the documents which are being obtained from the learned court below. Therefore, there is no denial by the plaintiffs to the effect that the late Durgaprasad have not contested the Civil Suit and has not filed written statement, affidavit and Vakalatnama etc. on the basis of which the learned trial Court has passed the judgment and decree, therefore, he has prayed for quashment of the impugned order with the direction to the learned trial Court to allow the application. 3. Per contra counsel appearing for the respondents has supported the impugned order and has argued that the there is no illegality committed by the learned trial Court. It is further contended that the plaintiff has specifically denied the signature of late Durgaprasad on the documents, therefore, once there is no admitted signature on record the comparison of signatures cannot be done and the Civil Suit is at the plaintiff evidence stage and aforesaid document can very well be ascertained during evidence. It is further contended that the plaintiff has specifically denied the signature of late Durgaprasad on the documents, therefore, once there is no admitted signature on record the comparison of signatures cannot be done and the Civil Suit is at the plaintiff evidence stage and aforesaid document can very well be ascertained during evidence. Learned counsel for the respondents has further argued that the application under Order 16 Rule 1 & 2 does not make any provision for verification of signatures from handwriting expert rather an application under Order 45 of Evidence should have been filed by the defendants. The applications were also not supported by the affidavit, therefore, the learned trial court has not committed any illegality in the impugned order. 4. Heard learned counsel for the parties and perused the record. 5. From perusal of record, it is seen that on earlier occasion the Civil Suit was filed by one Pramod Kumar being Civil Suit No. 211A/1989, wherein late Durgaprasad was one of the defendants. The Suit was filed on 20.11.1989 and finally heard and decided vide its judgment and decree dated 26.11.2001, wherein the learned trial Court has rejected the Civil Suit. During the pendency of the Civil Suit, an application under Order 16 Rule 1 & 2 read with Section 151 CPC has been filed for verification of signature of late Durgaprasad on the documents on partition and mutation as the signatures have been denied by the plaintiffs. In support of the application, they have also filed copies of documents that is written statement filed on behalf of late Durgaprasad before the learned trial Court in the previous Civil Suit copy of Vakalatnama duly signed by late Durgaprasad, copy of affidavit duly signed by late Durgaprasad, copy of applications duly signed late Durgaprasad, wherein signatures of late Durgaprasad clearly visible. The aforesaid documents are certified copies were obtained from the record of earlier Civil Suit No.211A/1989 all the documents are public documents and certified copies are being obtained from the learned trial Court. 6. The provision of Order 16 Rule 1 and 2 CPC are required to be seen; Summoning and attendance of witnesses;- "1. List of witnesses and summons to witnesses. 6. The provision of Order 16 Rule 1 and 2 CPC are required to be seen; Summoning and attendance of witnesses;- "1. List of witnesses and summons to witnesses. (1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. (4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the [Court or to such officer as may be appointed by the Court in this behalf within five days of presenting the list of witnesses under sub-rule (1).] 2. Expenses of witness to be paid into Court on applying for summons (1) The party applying for a summons shall, before the summons is granted and within a period to be fixed [which shall not be later than seven days from the date of making application under sub-rule (4) of rule 1], pay into Court such a sum of money as appears to the Court to be sufficient to defray the traveling and other expenses of the person summoned in passing to and from the Court in which he is required to attend, and for one day's attendance. (2) Experts- In determining the amount payable under this rule, the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case. (2) Experts- In determining the amount payable under this rule, the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case. (3) Scale of expenses- Where the Court is subordinate to a High Court, regard shall be had, in fixing the scale of such expenses, to any rules made in that behalf. (4) Expenses to be directly paid to witnesses- Where the summons is served directly by the party on a witness, the expenses referred to in sub-rule (1) shall be paid to the witness by the party or his agent." 7. From perusal of the aforesaid provisions, it is apparently clear that Order 16 deals with summoning and attendance of witnesses it does not speak about verification of signatures on documents by any person by handwriting expert. It is not in dispute that the documents which have been filed by the defendants alongwith the application are certified copies of the documents obtained from the court below filed on behalf of late Durgaprasad in the earlier Civil Suit, but the facts remains that the application under Order 16 Rule 1 and 2 CPC filed for verification of signatures which is also not supported by any affidavits, therefore, the provisions of Order 16 Rule 1 & 2 of CPC for verification of signatures by handwriting expert is not applicable to the aforesaid application. The provision of order 16 Rule 1 & 2 deals with summoning of attendance of witnesses even otherwise Civil Suit at the stage of plaintiff evidence. The defendants are having ample opportunity to lead evidence in support of their arguments. Proper application can be filed at the appropriate stage of the proceedings before the court below even otherwise the petition under Article 227 of the Constitution of India having limited jurisdiction. It is trite law as laid down by the Hon'ble Supreme Court that the plaintiff is required to prove his case and he cannot take the advantage of weakness of defendant as has been held by the Hon'ble Supreme Court in the case of Anil Rishi vs. Gurbaksh Singh reported in (2006) 4 CTC 524 . 8. The Hon'ble Supreme Court while dealing with the case of Shalini Shyam Shetty Vs. 8. The Hon'ble Supreme Court while dealing with the case of Shalini Shyam Shetty Vs. Rajendra Shankar Partil reported in (2010) 8 SCC 329 has dealt with the scope of supervisory jurisdiction of High Court and has held that the aforesaid right must be exercised by the High Courts most sparingly and in appropriate cases and high court is not sitting as appellate forum and has held as under:- "49 (a) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (b) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (c). In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised". 9. The Hon'ble Supreme Court in the case Sudha Lodh Vs. National Insurance Company reported in 2003 (3) SCC 524 , has held as under:- "The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision". 10. The Hon'ble Supreme Court in the case of Kazimunnisa Dead By Legal Representative Vs. Zakia Sultana (dead) By Legal Representative reported in (2018) 11 SCC 208 has again considered the scope of Article 227 of the Constitution of India. Relevant para is reproduced herein below:- "The High Court should have decided the matter by keeping in view the scope and ambit of Article 227 of the Constitution of India for its exercise as explained by the Supreme Court consistently in a series of decisions. The High Court while reversing the findings of the Special Court decided the writ petition under Article 227 like a first appellate court by appreciating the entire evidence little realising that the jurisdiction of the High Court while deciding the writ petition under Article 227 is not akin to an appeal and nor can it decide the writ petition like an appellate court". 11. The Hon'ble High Court can only examine that the learned trail court has proceeded within the parameters. While dealing with the writ of certiorari the Hon'ble High Court has to see whether any illegality has been committed by the learned trial court. It is not a case where Hon'ble Court can go into the merits of the case at large, but is required to see whether the learned trial court has committed any illegality in deciding the application or not. Thus, after going through the material available on record and considering the settled legal position, it is observed that the learned trial court has not committed any illegality while deciding the application under Order 16 Rule 1 and 2 of CPC. 12. Accordingly, the present petition is merit-less and hereby dismissed. No order as to cost.