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Rajasthan High Court · body

2022 DIGILAW 1874 (RAJ)

Bachhu Singh v. Bhim Sen

2022-06-28

ASHOK KUMAR GAUR

body2022
JUDGMENT 1. This writ petition has been filed by the petitioner-plaintiff challenging the order dated 29.08.2018, whereby his application filed under Order 47 Rule 1 CPC for reviewing the order dated 16.05.2018, has been dismissed. 2. Learned counsel for the petitioner submitted that initially an application was filed by the respondent-defendant under Order 26 Rule 10-A of CPC, wherein prayer was made by him that the document in question i.e. agreement to sell dated 30.08.2011, did not bear his signature, and as such, the said signature of the respondent-defendant was required to be compared with other documents to prove that he had never put a signature on agreement to sell. 3. Learned counsel for the petitioner submitted that reply to the said application was filed by the petitioner and an objection was raised that while adducing evidence, the respondent-defendant, admitted in his first cross-examination that he had put his signature on the agreement and photo affixed on the agreement to sell, was also of the defendant. Learned counsel for the petitioner submitted that the stage of closing evidence of the defendant was also pointed out and defendant wanted to delay the disposal of the suit, and as such, the prayer was made to dismiss the said application. 4. Learned counsel for the petitioner submitted that the court below vide order dated 30.01.2018, dismissed the application filed by the respondent. 5. Learned counsel for the petitioner submitted that the order dated 30.01.2018 was never put to challenge by the defendant- respondent and same became final. 6. Learned counsel for the petitioner submitted that subsequently after dismissal of application of the respondent, again an application was filed by the respondent, wherein, he prayed before the Court that report of fingerprint expert was required to be obtained in order to prove the alleged signature put by the respondent on agreement to sell dated 30.08.2011. The defendant made prayer in the application that fingerprint expert may be permitted to take specimen signature of the respondent and after obtaining report of such expert, permission may be granted to produce the same before the Court and to lead the evidence to prove that defendant had never put his signature on the agreement to sell. 7. The defendant made prayer in the application that fingerprint expert may be permitted to take specimen signature of the respondent and after obtaining report of such expert, permission may be granted to produce the same before the Court and to lead the evidence to prove that defendant had never put his signature on the agreement to sell. 7. Learned counsel for the petitioner submitted that the petitioner filed reply to the said application and specifically pointed out that the evidence of the defendant was already concluded and defendant had admitted his signature during the cross- examination, while recording his evidence and application filed earlier was also dismissed, and as such, the petitioner prayed before the court below that such application was filed with ulterior motive to delay the entire proceedings. 8. Learned counsel for the petitioner submitted that the court below by order dated 16.05.2018, allowed the application of the respondent and recorded a finding that the opinion of the fingerprint expert by taking specimen signature, was an essential issue to be decided by the Court in the suit for specific performance, and as such, while allowing the application, the Court below, directed that fingerprint expert may take specimen signature from the Court file and his report may be placed before the Court. 9. Learned counsel for the petitioner submitted that the said order dated 16.05.2018 was put to challenge by the petitioner by filing S.B. Civil Writ Petition No.14355/2018, and this Court on 09.08.2018, permitted the petitioner to withdraw the writ petition at the admission stage with liberty to file an application for recalling/reviewing the order dated 16.05.2018. 10. Learned counsel for the petitioner submitted that the petitioner filed a review application under Order 47 Rule 1 CPC for recalling the order dated 16.05.2018, however, the said application has been dismissed by impugned order dated 29.08.2018, which is challenged before this Court. 11. Learned counsel for the petitioner has raised following submissions before this Court:- 1. The Court below once considered and dismissed the application filed by the petitioner under Order 26 Rule 10-A CPC, then the Court could not have passed the different order, allowing the application by impugned order dated 16.05.2018. 2. The defendant during his cross-examination had admitted his signature on the alleged document-agreement to sell and in view of his admission, no further opportunity was required to be given to get report of handwriting expert. 2. The defendant during his cross-examination had admitted his signature on the alleged document-agreement to sell and in view of his admission, no further opportunity was required to be given to get report of handwriting expert. 3. The respondent was given the liberty while dismissing his earlier application for comparing the signature by other documents and defendant did not avail the said opportunity and he moved another application with the similar prayer only by changing the nomenclature of the application. 4. The defendant while filing the written statement had never taken a specific plea that his signatures were not put on the agreement to sell or his signatures were forged and fabricated by any other person. 5. The Civil Court while deciding the suit for specific performance has to keep in mind the defence/written statement which is filed by the defendant and further evidence which he leads before the Court and no relief can be granted to delay the proceedings which are initiated by the petitioner in the year 2011. 12. Per contra, learned counsel-Mr. Dinesh Kumar Garg appearing for the respondent-defendant has made the following submissions:- 1. That the court below has rightly passed the order dated 29.08.2018 and earlier order dated 16.05.2018. 2. The earlier application which was filed by the respondent under Order 26 Rule 10-A was not filed with the same prayer as the subsequent application was filed and in the earlier application only prayer was made that the alleged agreement to sell which had signature of the respondent was required to be compared with other documents like lease/patta, conversion, documents, etc. 3. That the earlier application filed by the respondent was dismissed on the ground that he had not mentioned in his application about the details of the bureau of fingerprint and further whether he wanted the opinion of the fingerprint expert from a person who was working in the Government or in the Private Sector. 4. That due to lack of particulars of handwriting expert, the earlier application was dismissed and no finding was recorded on the merits of the matter, and as such, there was no bar under the law that filing of another application by requesting for appointment of handwriting expert. 5. 4. That due to lack of particulars of handwriting expert, the earlier application was dismissed and no finding was recorded on the merits of the matter, and as such, there was no bar under the law that filing of another application by requesting for appointment of handwriting expert. 5. That in a suit for specific performance, if the defendant disputes, the signatures on the document-agreement to sell, until the signature of the defendant is proved, the issue of execution of agreement to sell, cannot be decided and no such decree of specific performance can be passed, until the defendant is given an adequate opportunity to prove that somebody else has forged his signature and no signature was put by such defendant. If the very basis of a suit is an agreement to sell and the same is not proved by proper evidence, led by any of the party, the Civil Court will not be in a position to give any finding in respect of execution of the document. 6. That in the written statement, the defendant-respondent had denied execution of any document whatsoever, and as such, the stand of the respondent was very specific that he never executed any agreement to sell. 13. I have heard the submissions made by learned counsel for the parties. 14. This Court finds that the respondent had earlier filed an application under Order 26 Rule 10-A CPC and prayed that the document in question i.e. agreement to sell, did not bear his signature, and as such, prayer was made to compare these signatures, from other documents. 15. This Court finds that the power under Order 26 Rule 10-A is in respect of a scientific investigation which is required to be conducted by the Expert, in the interest of Justice, the Court has power to issue a commission to such person, asking him to enquire into such question of scientific investigation and to give the report. 16. The very purpose of Order 26 Rule 10-A was for the purpose of having an opinion of the Expert and same was exercised by the respondent by moving an application. 17. This Court finds that the said application was dismissed by the court below vide its order dated 30.01.2018, and as such, the order was never challenged by the respondent before any Higher Forum and same became final. 18. 17. This Court finds that the said application was dismissed by the court below vide its order dated 30.01.2018, and as such, the order was never challenged by the respondent before any Higher Forum and same became final. 18. This Court further finds that after dismissal of the said application filed by the respondent, he moved another application dated 27.02.2018, and there was no mentioning of any Section or any Provision of CPC for moving such application and only prayer was made that the court below may allow the specimen signature of the defendant-respondent to be taken and same may be sent to fingerprint expert and his evidence may be produced in the Court. 19. The framing of application or pleading in application, ultimately, was to the same effect, as filed by the respondent earlier, and as such, the court below committed illegality in permitting the said application to be allowed vide order dated 16.05.2018. 20. This Court, in no manner, is observing that opinion of an expert, is not necessary for deciding the question about signature being put by some person or not in a suit for specific performance, however, the facts of this case, reveal that once application was filed by the defendant earlier and subsequently an application is again filed, the court below while considering these facts, could not have allowed the subsequent application, only for the reason that no provision was mentioned in the application, which was filed subsequently. 21. The contention of the learned counsel for the respondent that the Court below while dismissing the earlier application specifically observed that the respondent did not give the correct particulars of fingerprint expert or the details from which such report was to be collected, suffice it to say by this Court that the application of the respondent was not dismissed only on the said account but the Court below had also found that the evidence of the defendant was already recorded and further the defendant had admitted his signature in his cross-examination at one point of time. 22. This Court does not agree with the submission of the learned counsel for the respondent that liberty was given to the respondent to move application subsequently and there was no bar under the law to move subsequent application. 23. 22. This Court does not agree with the submission of the learned counsel for the respondent that liberty was given to the respondent to move application subsequently and there was no bar under the law to move subsequent application. 23. The contention of the learned counsel for the respondent that the written statement which was filed by the defendant had specifically mentioned that no document was ever executed by the defendant and same was sufficient for drawing an inference that the signature of the respondent was forged & fabricated, and as such, opportunity ought to have been afforded to the respondent to lead evidence to prove that he had not put any signature, suffice it to say by this Court that the written statement filed by the defendant-respondent had never taken a specific plea that the signatures were forged or fabricated. 24. This Court further finds that the defendant-respondent in his cross-examination at one point of time already admitted that he had put his signature on the agreement and affixed photo on the agreement to sell. 25. This Court further finds that the suit was filed by the petitioner in the year 2011, the evidence of the defendant has already been completed and at the time of final hearing of the suit, applications are filed and the Court below has permitted such application to be allowed, this Court finds that the plaintiff who has filed the suit, always expects that after pleadings are complete, evidence is led by the parties, the Civil Court should proceed to decide the suit itself. The miscellaneous applications which are filed even after closing of evidence and when the case is ripe for final hearing of the suit, such applications always delay the disposal of the suits and the litigants always suffer because of such applications filed by their counsel. 26. This Court finds that the impugned order dated 29.08.2018 and the order dated 16.05.2018 are not legally sustainable and same have been passed contrary to law. 27. This Court, accordingly, sets aside the orders dated 29.08.2018 and 16.05.2018. 28. This Court further directs that all endeavors should be made by the Court below to dispose of the suit on merits, if the pleadings and evidence of the parties have already been completed. Accordingly, the writ petition stands allowed.