Chhotey Lal vs Kirori Lal
2013 Latest Caselaw 4415 Del

*         THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM (M) 113/2012, CM 1745/2012

                                           Date of Decision:26.09.2013

CHHOTEY LAL                                               ..... Petitioner

                          Through:     Mr. Amit Punj,         Mr.Samrat
                                       Nigam, Advs.


                                 Versus

KIRORI LAL                                              ..... Respondent

                          Through:     Mr. S. Chandra, Adv.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. Arguments have already been heard.

2. This petition seeks assailing of order dated 17.12.2011 whereby

application under Order 41 Rule 27 r/w Section 151 CPC, filed by the

respondent, was partly allowed to the extent that he was permitted to

lead additional evidence by calling or summoning the record of bank

pertaining to account No. 458714, Bank of Baroda, Kirti Nagar

Branch, Delhi being operated by the petitioner (the plaintiff in the suit)

and also to get his signatures compared with the disputed signatures by

the handwriting expert. The petitioner/ plaintiff has grievance to this

extent against the impugned order of the ADJ.

3. The property in question was purchased in the joint names of the

petitioner and the respondent, who are real brothers, in the year 1972.

This property was constructed, and thereafter let out to various tenants

from time to time. Undisputedly, the respondent was collecting rent

from the tenants and giving to the petitioner his share of the rent.

Thereafter, the petitioner filed a suit for partition, rendition of accounts

and injunction against the respondent sometime in November 1998.

Issues in this suit were framed on 07.02.2000. After the trial,

preliminary decree was passed on 22.12.2007. One of the issues which

were framed by the trial Court, being issue No. 2 was as under:

"Whether the plaintiff is entitled for decree of partition of suit property, as prayed for, in the suit? OPP".

4. The respondent challenged the preliminary decree by filing an

appeal being RCA 32/2011 in the court of Additional District Judge

(Central)-12. During the pendency of this appeal, the respondent

herein (appellant in RCA 32/2011) also filed an application under

Order 41 Rule 27 CPC read with Section 151 CPC, which came to be

partly allowed in that the respondent herein, who was the defendant in

the suit was permitted to lead additional evidence in the manner as

indicated above. The plea that was taken by the respondent herein

before the court of ADJ was that he had filed an application under

Order 6 Rule 5 CPC on 29.02.2002, seeking better particulars from the

bank of the petitioner for the purpose of comparing the alleged

signatures of the petitioner with the one appearing on the agreement

Ex. DW2/1 alleged to be executed by him with his admitted signature

by way of examination and comparison through handwriting expert,

but the said application had been dismissed by the learned Civil Judge

vide order dated 29.05.2002 reasoning as under:

"In view of the submission and facts and circumstances the defendant has already obtained the specimen signatures of the Plaintiff from the judicial file and sent to the opinion of the handwriting expert. As such, there is no need to take signature of the plaintiff from the bank account. The application seems to be motivated and found no substance on merits. As such hereby dismissed. No orders as to costs."

5. It was the respondent's submission before the Addl. District

Judge that when his application under Order 6 Rule 5 CPC had been

dismissed by the Civil Judge, he could not have based his findings

observing that he did not bother himself to summon the so-called real

signatures of the petitioner from the bank concerned, nor himself has

placed anything on record which bears the signatures of the same

nature and characteristics as that of the signatures so appearing at Point

'B' on agreement Ex.DW2/1.

6. The learned ADJ vide the impugned order dated 17.12.2011

allowed this part of the request of the respondent and permitted him to

lead additional evidence reasoning as under:

"Therefore in all fairness, the appellant is to be permitted to lead additional evidence by calling or summoning the requisite record of bank account no. 458714, Bank of Baroda, Kirti Nagar, Delhi i.e. the account opening record of the respondent (plaintiff) of his previous bank as prayed in his application filed before the ld. Court below under Order 6 Rule 5 CPC. The appellant after summoning such record would be entitled to get the questioned signatures of the

respondent (plaintiff) on the agreement Ex. DW2/1 compared by handwriting/signatures expert. He is thus also permitted to examine a handwriting expert at his own cost and expense."

7. It is this order of the learned ADJ which is challenged in the

instant petition by the petitioner/plaintiff.

8. It is the submission of the learned counsel for the petitioner that

the respondent having failed to prove the signatures of the petitioner on

the agreement Ex.DW2/1, the learned Civil Judge rightly observed the

said documents having not been proved as per law. It is submitted that

the remand of the case by the learned ADJ with opportunity being

afforded to the respondent to prove the alleged signatures of the

petitioner on Ex.DW2/1 was to re-open the case. It is also submitted

that even if the respondent is allowed to lead evidence as regard to the

signatures on Ex.DW2/1 by examining the bank official, that would

not lead to any different findings inasmuch as the said document being

neither stamped nor registered was not admissible in evidence as per

Indian Stamp Act and the Indian Registration Act.

9. So far as the contention that the said document Ex.DW2/1 was

neither stamped nor registered, and was not admissible, this aspect

cannot be gone into in the present proceedings, and was to be

examined by the learned ADJ in the appeal that is to be heard by him

on merits. So far as the opportunity afforded by the learned ADJ to the

respondent to permit him to lead additional evidence of the bank

official and handwriting expert, I do not see any illegality or

impropriety in the said order. This is more so in view of the fact that

the respondent had already filed an application under Order 6 Rule 5

CPC for the same purpose which had been dismissed by the learned

Civil Judge by an earlier order. The document Ex.DW2/1 which is

stated to be a relinquishment deed allegedly signed by the petitioner,

but denied by him goes to the root cause of the controversy. Thus, I do

not see any infirmity or illegality in the impugned order. The petition

being without any merit is hereby dismissed.

M.L. MEHTA, J.

SEPTEMBER 26, 2013 akb