Tanaji Rao Maratha (Tanagi ... vs Smt. Rama Rani And 2 Others
2023 Latest Caselaw 9704 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 2
 
Case :- MATTERS UNDER ARTICLE 227 No. - 3099 of 2023
 
Petitioner :- Tanaji Rao Maratha (Tanagi Ganpati)
 
Respondent :- Smt. Rama Rani And 2 Others
 
Counsel for Petitioner :- Amrendra Nath Rai,Sanjay Singh
 
Counsel for Respondent :- Udit Chandra,Subodh Kumar
 

 
Hon'ble Neeraj Tiwari,J.

Heard Sri Atul Dayal, learned Senior Counsel Assisted by Sri Sanjay Singh, learned counsel for the petitioner and Sri Subodh Kumar alongwith Sri Udit Chandra, learned counsel for the respondents.

Present petition has been filed challenging the judgment and decree dated 03.02.2023 passed by A.D.J. Court No. 3, Bareilly in S.C.C. Revision No. 07of 2021 and judgment and decree dated 20.09.2021 passed in S.C.C. No. 21 of 2019 by S.C.C. Judge, Bareilly.

The case was heard on 27.03.2023 and the Court has passed the following order:

"Supplementary affidavit filed today, is taken on record.

Heard Sri Atul Dayal, learned Senior Advocate, assisted by Sri Sanjay Singh, learned counsel for the petitioner and Sri Subodh Kumar alongwith Sri Udit Chandra, learned counsels for the respondents.

After hearing counsel for the parties, when Court was inclined to stay the proceeding and also grant time to the respondents to file counter affidavit, learned counsel for the respondents submitted that he does not want to file counter affidavit as the legal issue is involved, therefore, Court may decide the case on merits on the basis of document so annexed by learned counsel for the petitioner in writ petition as well as supplementary affidavit.

On his request, put up this case as fresh on 04.04.2023.

Till then, interim order granted earlier shall remain operative"

Sri Atul Dayal, learned Senior Counsel submitted that Suit No. 21 of 2019 was filed by the plaintiff-respondent without serving alleged notice dated 15.04.2019. He next submitted that on the said date, petitioner-defendant was at his native village in Maharashtra for the marriage of his daughter. Court summons was served to his shop and he was informed about it. Immediately after that he came back from his village on 24.05.2019. After obtaining documents of notice dated 15.04.2019, it is found that a forged signature of petitioner-defendant was made on the acknowledgement. He submitted that name of petitioner-defendant is written as Tanaji Rao Maratha (Tanaji Ganpati), but on acknowledgement, while putting his forged signature, the name has been written as Tanaji Dhagde upon that. The petitioner-defendant immediately moved a Misc. Application dated 02.09.2019 with request to S.C.C. Court to obtain the expert report after taking his specimen signature, upon which, plaintiff-respondent has filed objection dated 12.09.2019 with specific case that signature of petitioner-defendant may be verified from his Aadhar Car, PAN Card and bank signature and his presence may also be verified from the C.C. T.V. footage of C.C. T.V. Camera installed in the shop, which is in possession of plaintiff-respondent. The application of petitioner-defendant dated 02.09.2019 was rejected by the S.C.C. Court vide order dated 09.10.2019 on the ground that S.C.C. Court is expert of experts and further, if required, at any stage opinion of expert may be taken.

Against the order dated 09.10.2019, Revision No. 54 of 2019 was filed, which was dismissed vide order dated 31.10.2019 as not maintainable only on the ground that matter is pending and order dated 09.10.2019 does not come within the category of "case decided".

He next submitted that Suit No. 21 of 2019 was finally decided vide judgment and order dated 20.09.2019. While deciding the said Suit, point of determination has been framed as to whether notice dated 15.04.2019 has validly been served or not and S.C.C. Court has given a detailed finding upon the same. PW-1, Sri Seetesh Agarwal was examined and he stated that he is not aware as to whether, there is any signature on the notice 7-Ga or not. He has given consent of sending notice to his counsel before 4-5 days. He is not aware as to whether notice has been given on 15th-16th April or not. Information of service of notice was given to him through his counsel. Address of plaintiff and defendant is same and while coming from Tanaji Rao Maratha, Postman informed that notice has been served. Postman was never examined.

He firmly submitted that once the notice has not been served, it is required on the part of the court concerned to reject the suit. He next submitted that while deciding the suit, the issue, as to whether notice has been served or not upon the petitioner-defendant or not has to be determined, therefore, under such facts of the case, to decide the issue about service of legal notice on petitioner-defendant, it is necessarily required on the part of the court concerned to obtain hand writing expert's report, which is missing in this case and then to proceed to decide the suit. Therefore, impugned orders dated 03.02.2023 and 20.09.2021 are bad liable to be set aside.

Per contra, Sri Subodh Kumar, learned counsel for the respondents has opposed the submission made by learned counsel for the petitioner. He has placed reliance upon the judgment of Apex Court passed in Civil Appeal Nos. 7818-7819 of 2009: Chennadi Jalpathi Reddy Vs. Baddam Pratapa Reddy(Dead) Thr Lrs. & Anr. and submitted that application of petitioner dated 02.09.2019 was itself bad for the reason that in light of judgment of Apex Court in Chennadi Jalpathi Reddy(Supra), no fresh specimen signature can be taken to compare the signature after filing of suit and at the most, it is required on the part of court concerned to verify the signature on the basis of Aadhar Card, PAN Card and bank signature.

He also submitted that his presence may also be verified from the C.C. T.V. camera, for which he has filed application numbered as paper No. 27-Ga. He next submitted that court concerned after considering the entire facts has come to the conclusion that as petitioner-defendant was present in the shop, treating the notice to be sufficient, rightly proceeded to decide the suit.

Being confronted by the Court as to whether CCTV footage was examined by the Court or not, counsel for both the parties agreed that it has not been examined by the Court.

I have considered submissions made by learned counsel for the parties and perused the record as well as judgment so relied upon.

From the perusal of record, it is undisputed that from day one, petitioner-defendant has raised objection about his signature and moved application for obtaining report of hand writing expert. It is also undisputed that though the plea was raised by the the plaintiff-respondent for C.C. T.V. footage, but the same has never been examined by any court, i.e. First Court or the Revisional Court and the issue remains before the courts to determine as to whether the signature of petitioner-defendant is correct or forged. Bona fide of petitioner-defendant is clear as he has moved the application dated 09.02.2019, which was rejected by the S.C.C. Court vide order dated 09.10.2019 and against the said order he filed Revision No. 54 of 2019, which was also dismissed by revisional court vide order dated 31.10.2019 on technical grounds.

So far as, service of notice in dispute is concerned, it can be very well verified after obtaining the hand writing expert report as petitioner-defendant has raised objection and he himself has moved application before the Court for obtaining hand writing expert report.

Argument of Sri Subodh Kumar, learned counsel for the respondent is having force that no new specimen signature can be taken in light of judgment of Apex Court in the matter of Chennadi Jalpathi Reddy(Supra), and as per objection, the same can be verified from the Aadhar Car, PAN Card and bank signature, but for the reason better known to the Court, the expert opinion has never been sought. The S.C.C. Court may be expert of experts in case different opinions are available on one issue, but in such technical matters, where no report has been obtained, it is surprising that as to how the S.C.C. Court is expert of experts.

Therefore, under such facts and circumstances of the case, the petition is allowed. Impugned orders dated 03.02.2023 and 20.09.2021 are hereby quashed. The matter is remanded back to the S.C.C. Court to decide the case afresh after obtaining hand writing expert report having signature of petitioner-defendant on acknowledgment as well as Aadhar Card, PAN Card and bank signature in light of judgment of Apex Court in the matter of Chennadi Jalpathi Reddy(Supra).

At this stage, Sri, Subodh Kumar, learned counsel for the respondent submitted that as the case has been decided, a direction may be issued to S.C.C. Court the expedite the hearing of the suit and decide the same at the earliest, for which Sri Atul Dayal, learned Senior Counsel has no objection.

Accordingly, S.C.C. Court is directed to decide the case maximum within a period of six months from the date of production of certified copy of this order.

It is made clear that counsel for the parties shall not seek any unnecessary adjournment. In case, adjournment is granted, Court shall record reasons for the same.

Order Date :- 4.4.2023/ADY