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2020 DIGILAW 406 (MP)

Praveen Kunwar v. Vishwajeet Singh

2020-03-12

PRAKASH SHRIVASTAVA

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JUDGMENT : Prakash Shrivastava, J. 1. Heard finally with consent. 2. By this misc. petition under Article 227 of the Constitution of India, defendants in the suit have challenged the order of the trial Court dated 26/08/2019 whereby their application under Section 45 and 73 of the Evidence Act has been rejected. 3. Learned counsel appearing for the petitioners submits that the trial Court has committed an error in rejecting the petitioner's application without appreciating that the sale deed dated 23/01/2012 (Exhibit P/9) is an admitted document which contains the signature of the executant of the alleged Will namely Chatarkunwarbai. Hence, the said signature can be compared by the handwriting expert with the signature contained in Will Exhibit P/1 and that the trial Court has rejected the application on improper grounds and when the respondent has filed his own and handwriting expert report then the petitioners cannot be denied the said opportunity. 4. As against this, learned counsel for the respondent has supported the impugned order and has submitted that the Will is not in dispute and that the report in this regard has already been filed and proved and the plaintiffs' evidence is over. 5. Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that case of the respondent is based upon the Will. Trial Court has rejected the petitioners' application to call for the report of the handwriting expert on the main ground that there is no admitted document containing the signature of Chatarkunwarbai available which can be compared with her signature in Exhibit P/1 but while holding so, the trial Court has failed to take note of the sale deed dated 23/01/2012. The respondent had produced their own handwriting expert's opinion based upon the admitted signature contained in the sale deed dated 23/01/2012, therefore, the petitioners could not have denied the opportunity to call for the report of the handwriting expert in respect of signature of Chatarkunwarbai on the Will Exhibit P/1. That apart, the evidence of the petitioners is yet to commenced and the respondent will have full opportunity to cross examine the concerned witness as and when the report of the handwriting expert so obtained is proved. Such an opportunity cannot be denied to the petitioners in view of the judgment of the Gwalior Bench in the matter of Nandu Vs. Such an opportunity cannot be denied to the petitioners in view of the judgment of the Gwalior Bench in the matter of Nandu Vs. Ratiram Yadav and others reported in 2019 (3) MPLJ 296 wherein it has been held that:- "It is undisputed fact that the application filed by the respondent No. 1 for getting thumb impression on the agreement examined from the handwriting expert was allowed by the trial court and accordingly, the report of the handwriting expert has been placed on record. Under these circumstances, this Court is of the considered opinion that the trial court cannot take away the right of the petitioner/defendant to produce the report of the handwriting expert in rebuttal of the report of the handwriting expert filed by the respondent No. 1/plaintiff. Thus, in the light of the judgment passed by the Division Bench of this Court in the case of Usha Sharma (supra), this Court is of the considered opinion that the order dated 6/12/2017, so far as it relates to rejection of application under Section 151 of CPC, is hereby set aside. Accordingly, the application filed by the petitioner under Section 151 of CPC for producing his report of the handwriting expert in rebuttal of the report of the handwriting expert filed by the respondent No. 1/plaintiff is allowed. The trial court is directed to proceed further in accordance with law. The interim order dated 19/1/2018 is hereby recalled." 6. Same is the view taken by the Gwalior Bench in the matter of L.S. Trading Company Vs. Manish Mishra reported in 2010 (4) MPLJ 228 by observing as under:- "(5.) There are several modes to get a document proved. While examining the scope of section 67 of the Evidence Act we find that there cannot be any straight jacket formula or any particular mode of proving a particular document or handwriting or signature. Section 67 of the Evidence Act is the relevant provision in respect to the proof of signature and handwriting of a person. While examining the scope of section 67 of the Evidence Act we find that there cannot be any straight jacket formula or any particular mode of proving a particular document or handwriting or signature. Section 67 of the Evidence Act is the relevant provision in respect to the proof of signature and handwriting of a person. According to us, following are the modes for proving a document:- "(i) By calling a person who signed or wrote a document; (ii) By calling a person in whose presence the documents are signed or written; (iii) By calling handwriting expert; (iv) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written; (v) By comparing in Court, the disputed signatures of handwriting with some admitted signatures or writing; (vi) By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it; (vii) By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person; A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e.g. by the scribe who signed on behalf of the executant; (viii) By other circumstantial evidence." In this context we may profitably place reliance on the Single Bench decision of this Court Kishan Prasad v. M.P. Government through Collector, Vidisha, 1983 JLJ 474 in which the another Single Bench decision of Court Ramibai v. Life Insurance Corporation of India, 1981 JLJ 388 has been placed reliance. Indeed, this exercise ought to have been done by the plaintiff, but if the defendants have moved an application under section 45 of the Evidence Act to get the handwriting examined, in absence of any specific bar in CPC, according to us, learned trial Court has arbitrarily dismissed the application without applying its proper mind on the facts and circumstances of the case." 7. Having regard to the aforesaid factual and legal position, the impugned order dated 26/08/2019 is found to be suffering from patent illegality. Hence, it is set aside. The petitioners' application under Section 41 and 73 of the Evidence Act is allowed. The trial Court is directed to pass the necessary consequential order. 8. Misc. Having regard to the aforesaid factual and legal position, the impugned order dated 26/08/2019 is found to be suffering from patent illegality. Hence, it is set aside. The petitioners' application under Section 41 and 73 of the Evidence Act is allowed. The trial Court is directed to pass the necessary consequential order. 8. Misc. petition is accordingly disposed off. 9. C.c. as per rules.