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2023 DIGILAW 793 (RAJ)

Meeni Devi, D/o. Jassaram, W/o. Khartaram v. Ghewar Chand, S/o. Bhikha Ram

2023-04-10

PUSHPENDRA SINGH BHATI

body2023
JUDGMENT : 1. This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs: “(i) It is, therefore, most humbly prayed that this Writ Petition may kindly be allowed and the impugned order dated 13.09.2019 (Annex.1) of the Additional District Judge, Sojat – Pali may kindly be declared illegal and the same may be quashed and set aside. (ii) Any other order or direction that may be deemed fit, just and proper may kindly be issued in favour of the petitioners. (iii) Costs may kindly be also awarded.” 2. Brief facts of the case, as placed before this Court by learned counsel for the petitioner, are that the present petitioner (plaintiff) had insituted a suit for declaration of relinquishment deed dated 27.07.1999 (registered on 17.01.2000) as null and void, as well as cancellation of gift deed dated 09.05.2016; along therewith, an application seeking permanent injunction application was also moved by the petitioner (plaintiff). 2.1. The learned Court below framed eight issues, including relief, and proceeded with the trial in the said suit. Thereafter, on 28.11.2018 during the examination-in-chief, Bhanu Singh (son of the petitioner) was presented as power of attorney holder on behalf of the petitioner (plaintiff) and stated that due to old age and disability certificate of 100% blindness, the petitioner was not competent to lead evidence. 2.2. Subsequently, the petitioner (plaintiff) filed an application under Section 45 of the Indian Evidence Act, 1872 and stated that the thumb impression on relinquishment deed dated 27.07.1999 (registered on 17.01.2000) were not of the petitioner (plaintiff). 2.3. However, the learned Court below, after hearing the parties, dismissed the said application filed by the petitioner (plaintiff) vide the impugned order dated 13.09.2019. Thus, aggrieved by the said order, the present petition has been preferred claiming the afore-quoted reliefs. 3. Learned counsel for the petitioner (plaintiff) submitted that in the original suit instituted by the petitioner, she had specifically stated that she never gave thumb impression on the relinquishment deed, and therefore, the expert opinion under Section 45 of the Indian Evidence Act is necessary for effective and fair adjudication of the suit. 3.1. 3. Learned counsel for the petitioner (plaintiff) submitted that in the original suit instituted by the petitioner, she had specifically stated that she never gave thumb impression on the relinquishment deed, and therefore, the expert opinion under Section 45 of the Indian Evidence Act is necessary for effective and fair adjudication of the suit. 3.1. Learned counsel further submitted that the petitioner (plaintiff), as per the certificate issued by the competent authority, suffered blindness disability to the extent of 100%, which is sufficient to call for the expert opinion regarding thumb impression in question; also in the interest of justice and to resolve the dispute between parties, the same is required to be called. 3.2 In support of his submissions, learned counsel relied upon the judgment rendered by the Hon’ble Apex Court in the case of Ramesh Chandra Agrawal Vs Regency Hospital Ltd. & Ors. (Civil Appeal No. 5991 of 2002 decided on 11.09.2009). He further relied upon the judgments rendered by Coordinate Benches of this Hon’ble Court at Jaipur Bench, in the case of Mohru (since deceased) through L.Rs & Ors. Vs. Additional Civil Judge (J.D.) No.1, Jaipur District, Jaipur & Ors. (S.B. Civil Writ No. 2 of 2011 decided on 04.10.2018) and Pratap Singh & Ors. Vs Zammi & Ors. (S.B. Civil Writ Petition No. 15255/2009 decided on 04.01.2011). He also relied upon the judgments rendered by the Hon’ble High Court of Andhra Pradesh in the case of Valludasu Alivelu Vs. Moguthula Yadaiah & Anr. (C.R.P. No. 156 of 2010 decided on 31.05.2010) and Chityalgundameede Ramalakshmamma Vs Ediga Rangamma & Ors (Civil Revision Petition No. 28 of 2012 decided on 27.09.2012), and the judgment rendered by the Hon’ble High Court of Allahabad in the case of Bechan Vs. Deputy Director of Consolidation, Gorakhpur & Anr. (Writ-B No. 54182 of 2016 decided on 21.11.2016). 4. On the other hand, learned counsel appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioner, submitted that from the record, it clearly transpires that the relinquishment deed 27.07.1999 was registered on 17.01.2000, and thus, after a long period of time, the issue regarding the thumb impression being fake and false cannot be raised by the petitioner (plaintiff), more particularly, when the said deed was registered before competent authority. Therefore, as per learned counsel, the impugned order passed by the learned Court below is justified in law, as the same was passed after taking into due consideration the overall facts and circumstances of the case and after duly appreciating the evidences placed on record before it. 5. Heard learned counsel for the parties as well as perused the record of the case along with the judgments cited at the Bar. 6. This Court observes that the relinquishment deed was registered on 17.01.2000, and the suit in question was instituted by the petitioner (plaintiff) for declaration thereof as null and void. Thereafter, an affidavit was filed on behalf of the petitioner, stating therein that the Bhanu Singh (son of the petitioner) represented the petitioner, because she is 100% blind (as per the certificate) and thus, cannot be termed as a competent witness. The respondent (defendant) during the trial of the suit, filed an application under Section 151 CPC, which was allowed by the learned Court below after considering the law position, while directing that the affidavit of Bhanu Singh shall be kept in part ‘D’ of the plaint. 7. This Court further observes that the petitioner (plaintiff) filed an application under Section 45 of the Indian Evidence Act, praying for calling of the expert opinion regarding the genuineness of his thumb impression, but the same was dismissed by the learned Court below vide the impugned order dated 13.09.2019. 8. This Court also observes that the relinquishment deed in question dated 27.07.1999 was registered in the year 2000, and thus, after a lapse of so many years, raising an objection regarding thumb impression of the petitioner thereon, in the given factual matrix, was not an appropriate course under the law. 9. This Court further observes that after a long period from the date of filing of the suit in question, by filing the application under Section 45 of the Indian Evidence Act, the petitioner (plaintiff) sought calling of a report from a particular handwriting and finger print expert, namely, Smt. Renuka Kumari Charan, regarding the credibility of the thumb impression in question, which in the attendant facts and circumstances of the case, cannot be permissible, and thus, the said application was rightly dismissed by the learned court below vide the impugned order. 9.1 Moreover, the learned court below in the impugned order also took note of the fact that the petitioner (plaintiff) also did not furnish the list of witness in the suit within time, and that, by filing the application under Section 151 CPC, which, as per the record, was allowed by the learned court below, the respondent (defendant) called into question the filing of an affidavit of her (plaintiff/petitioner’s) power of attorney, instead of her own, which had already been kept in part ‘D’ by the learned Court below vide order dated 28.03.2019. 10. This Court finds that the learned Court below in the impugned order also observed that as per Order 18 Rule 3-A CPC, “Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded permits him to appear as his own witness at a later stage”; the learned Court below further observed that in the original suit, vide order dated 20.09.2018, a direction was given to present a list of witnesses within time prescribed under the law; in compliance of such order, the respondent (defendant) submitted a list of witnesses on 09.10.2018, but the petitioner (plaintiff) has not furnished such a list of witnesses before the learned Court below. Thus, the same clearly makes the bona fides of the petitioner (plaintiff) doubtful, in the given factual matrix. 11. This Court further finds that the affidavit of son (power of attorney) of the petitioner had been already ordered to be kept in part ‘D’ by the learned Court below. 12. Thus, in the attendant facts and circumstances of the case, this Court finds that the learned Court below has passed a well reasoned speaking order, which does not call for any interference by this Court. 13. The judgments cited on behalf of the petitioner also do not render any assistance to her case, in the present factual matrix. 14. Consequently, the present petition is dismissed. However, the learned trial court is directed decide the suit expeditiously strictly in accordance with law. All pending applications stand disposed of.