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2022 DIGILAW 989 (RAJ)

Jardaar Khan v. Tunda Ram

2022-03-28

ASHOK KUMAR GAUR

body2022
ORDER 1. The instant petition has been filed by the petitioner, challenging the order dated 21.08.2019 whereby application filed by the petitioner under Sections 45 & 73 of the Indian Evidence Act has been dismissed. 2. Learned counsel for the petitioner submitted that the petitioner has filed a civil suit against the respondent for declaration and restoration of the possession of the property. 3. Learned counsel for the petitioner submitted that in order to deny the contention of the respondent that rent note dated 05.06.1986 produced by the petitioner was not genuine and same was not signed by the executor-Bashir Khan, the petitioner moved an application on 10.08.2016 before the trial court with a prayer to send the same with mortgaged documents dated 25.07.1985, to compare the signature of Bashir Khan by the Forensic Science Laboratory as mortgaged documents dated 25.07.1985 were also executed by Bashir Khan and duly registered by Sub Registrar, Dholpur. 4. Learned counsel for the petitioner submitted that it was specifically mentioned in the application that the documents were required to be sent to the Forensic Science Laboratory as the same would substantiate the contention of the petitioner that both the documents were genuine as they were executed by the executor late Shri Bashir Khan. 5. Learned counsel for the petitioner submitted that by impugned order dated 21.08.2019, the Court below has committed an error while rejecting the application. 6. Learned counsel for the petitioner submitted that only on the basis of a reference of a case No.14/85 which was filed by father of the petitioner-Tatiya against Bashir Khan and thereby the date of death of Bashir Khan was informed as 16.05.1985, the court below could not have dismissed the application. 7. Learned counsel for the petitioner further submitted that the court below while dismissing the application has also expressed its opinion that the documents dated 24.07.1985 i.e. mortgaged deed becomes doubtful. 8. Learned counsel for the petitioner submitted that while rejecting the application, such finding could not have been given and it will cause great prejudice to the case of the petitioner, while the matter was decided finally. 9. Learned counsel for the petitioner submitted that very purpose of Sections 45 & 73 of the Evidence Act has not been kept in mind. 10. 9. Learned counsel for the petitioner submitted that very purpose of Sections 45 & 73 of the Evidence Act has not been kept in mind. 10. Learned counsel for the petitioner further submitted that the rent note dated 05.06.1986 was required to be compared necessarily with the mortgaged deed dated 24.07.1985 and comparison of both the documents would have revealed the real author of the document. 11. Learned counsel appearing for the respondent has opposed the prayer made in the writ petition. 12. Learned counsel for the respondent submitted that the court below has not committed any illegality in passing the order dated 21.08.2019. 13. Learned counsel for the respondent submitted that the father of the petitioner-Tatiya had filed one suit against Bashir Khan, of partition and an application was filed under Order 22 Rule 4 CPC whereby the date of death of Bashir Khan was informed to the Court as 15.05.1986. 14. Learned counsel for the respondent submitted that in fact date of death of Bashir Khan is 15.05.1986 and necessary death certificate was also issued on 06.06.1986. 15. Learned counsel for the respondent submitted that it is not possible that deceased Bashir Khan could have executed a rent note on 05.06.1986 as he admittedly expired on 15.05.1986. 16. Learned counsel for the respondent submitted that the court below after considering the nature of both the documents and the relevant date on which these documents were executed, came to conclusion that there was no necessity to send both the documents for examination to the Forensic Science Laboratory. 17. I have heard the submissions made by learned counsel for the parties. 18. This Court finds that the Court below while considering the application filed by the petitioner has framed its opinion on the basis of the relevant facts as the date of death of the Bashir Khan has come on record even by an application filed by the father of the present petitioner in Suit No.14/85 against late Bashir Khan. 19. This Court further finds that the document which is sought to be sent to the Forensic Science Laboratory is the mortgaged deed said to be executed on 24.07.1985, while the rent note is said to be executed on 05.06.1986. 20. 19. This Court further finds that the document which is sought to be sent to the Forensic Science Laboratory is the mortgaged deed said to be executed on 24.07.1985, while the rent note is said to be executed on 05.06.1986. 20. This Court finds that the Court below on bare reading of the documents finds that the documents are executed on a particular date and the subsequent dates are given in respect of the other documents and they are required to be compared or to be examined by the Forensic Science Laboratory Experts, the court below has got discretion to consider the relevant facts on bare reading of the application and all the documents which are sought to be referred to the Forensic Science Laboratory, the Court can come to the conclusion that such examination is not required. 21. Considering the facts of the case, no illegality is said to be committed by the Court below. 22. Accordingly, the writ petition has no force and the same is dismissed.