Allahabad High Court
Sumeshar And 6 Others vs Ram Subhag (Died) And 19 Others on 18 December, 2023
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:239388
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 9943 of 2023
Petitioner :- Sumeshar And 6 Others
Respondent :- Ram Subhag (Died) And 19 Others
Counsel for Petitioner :- Jagdish Prasad Tripathi,Urmila Tripathi
Hon'ble Jayant Banerji,J.
1. Heard Sri Jagdish Prasad Tripathi, learned counsel for the petitioners.
2. This petition has been filed seeking the following relief:-
"i. Issue suitable order to set aside the impugned judgment and order dated 18.7.2023/25.7.2023 and decree dated 24.7.2023 passed by IIIrd Additional District Judge/Special Judge ( Gangster Act), Basti being (Annexure No. 12 and 13 to this petition)."
3. The petitioners are some of the defendants in Original Suit No. 488 of 1981 (Ram Subhag Vs. Jagdish and others) that was initially filed in the court of Munsif, Ballia. The matter is now pending in the court of Civil Judge (Junior Division), KLD at Basti.
4. It is the contention of the learned counsel for the petitioners that the aforesaid suit was filed seeking cancellation of a sale deed dated 9.9.1980. A written statement dated 5.4.1982 was filed on behalf of the defendants.
5. An application 84C2 dated 25.8.2022 was filed on behalf of the plaintiffs for seeking expert opinion with regard to the signature/thumb impression of the plaintiff appearing on the sale deed and Register No. 8 from the office of concerned Sub-Registrar of Registration be summoned and the thumb impression on the plaint and vakalatnama of Ram Subhag be compared with them. The objection bearing paper No. 86C2 dated 7.9.2022 was filed on behalf of the defendants objecting to the aforesaid application.
6. By an order dated 9.9.2022, the trial court directed the plaintiffs to file original copy of any document which has the signature or finger print of the plaintiffs. Simultaneously, the trial court rejected the application 84C2 and disposed of the objection 86C2. Thereafter, a Civil Revision No. 33 of 2022 was filed in the court of District Judge, Basti by the plaintiff by means of memorandum of revision dated 21.9.2022 seeking to challenge the order dated 9.9.2022, passed by the trial court in the aforesaid suit.
7. It appears that thereafter on 30.9.2022, an application paper no. 90C2 was filed on behalf of the plaintiffs with the prayer for exempting them from filing any paper/document containing thumb impression of the plaintiff no.1 Ram Subhag and an expert report be summoned on the basis of thumb impression appearing on the plaint.
8. The objection paper no. 93C2 was filed on behalf of the defendants stating that the application 84C2 was rejected and thereafter, the application 90C2 was filed by distorting the facts. The trial court by an order dated 25.1.2023 observed that it does not appear justified to call for expert report for verifying the thumb impression on the disputed document from thumb impression appearing on the plaint and vakalatnama. It was further observed that it is for the plaintiff to prove his case on the basis of evidence. It was further observed that on the basis of other evidence for proving the plaint case, the onus is on the plaintiffs. Accordingly, the application 90C2 and the objection 93C2 were disposed of.
9. Thereafter, by a judgment and order dated 18.7.2023, the 3rd Additional District Judge/ Special Judge (Gangster Act), Basti allowed the civil revision filed by the plaintiffs while setting aside the judgment and order dated 9.9.2022.
10. The contention of the learned counsel for the petitioners is that in view of the order dated 25.1.2023, passed by the trial court on the application 90C2 filed on behalf of the plaintiffs and the objection paper No. 93C2 filed on behalf of the defendants, there was no occasion for the revisional court to allow the revision and to set aside the order dated 9.9.2022.
11. A perusal of the judgment and order dated 18.7.2023, passed by the revisional court reflects that the order dated 25.1.2023 was not referred to either by the plaintiffs or defendants before the revisional court. Learned counsel for the petitioners has also conceded that the order of the trial court dated 25.1.2023 was not placed before the revisional court. The revisional court has observed that the matter involved in original suit is with regard to the sale deed, of which cancellation has been sought by the plaintiffs and under the circumstances, it is in the interest of justice that the expert opinion on the thumb impression be called for and as such the order dated 9.9.2022 is not a valid order. The revisional court has further observed that the order has been passed cursorily by the trial court in excess of jurisdiction.
12. As far as the opinion of the revisional court that the expert report on the thumb impression is required to be called for in the interest of justice, its effect in view of the order dated 25.1.2023 passed on the application 90C2 of the plaintiffs would be a matter of consideration by the appropriate court. Given the fact that the order dated 25.1.2023 passed by the trial court was not referred before the revisional court, as far as direction of the revisional court setting aside the order dated 9.9.2022 is concerned, the same calls for no interference, inasmuch as order dated 9.9.2022 as correctly pointed out by the revisional court, is a non-speaking order in contradistinction to the order dated 25.1.2023 which is a speaking order.
13. This petition is, accordingly, disposed of.
14. It is made clear that the trial court shall apply its mind independently.
Order Date :- 18.12.2023
sfa/
(Jayant Banerji, J)
