Delhi High Court
Badami Devi & Ors. vs Sanjay Khandelwal & Anr. on 3 November, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 1080/2013
% 3rd November , 2014
BADAMI DEVI & ORS. ......Petitioners
Through: Mr. Anuroop P.S.Advocate.
VERSUS
SANJAY KHANDELWAL & ANR. ...... Respondents
Through: Mr. Ujjawal Jha and Mr. Boony
Laishram, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India
impugns the order passed by the trial court dated 6.8.2013 by which the trial
court has rejected the prayer of the petitioners/plaintiffs for sending further
admitted documents to FSL as was demanded by FSL in order to prepare the
report.
2. On 4.4.2011, the trial court passed the following order referring
the issue of signatures of the parties to FSL and for giving its report:-
1. An application under Section 45, Indian Evidence Act, filed
by the plaintiff is pending disposal. By way of the application,
CM(M) 1080/2013 Page 1 of 5
plaintiff has prayed that the signatures of defendant no.1 on the
counter foils on recent receipt dated 10.1.2009, 10.2.2009,
10.03.2009 and 10.04.2009 and signatures of the plaintiffs on the
recent receipts on even dates be sent for examination by an expert
of Forensic Science Laboratory.
2. Learned counsel for the defendants have not opposed the
application.
3. During admission and denial of documents held on
15.02.2011, the documents have been denied by the opposite
parties respectively.
4. Since, it is essential for just decision in the matter that the
signatures on the rent receipts and counter foils be examined by
an expert.
5. This Court therefore deems it appropriate to exercise its
power under order XIV Rule 4 for examination of an handwriting
expert. It is hereby ordered that summons as per Order V Rule
30, Civil Procedure Code, 1908 issued vide PF to the Director
NICFS, Rohini to provide this Court the assistance of a
handwriting expert, returnable on 06.05.2011.
6. The application stands allowed as per the abovementioned
directive."
3. The issue with respect to disputed signatures, and the report of the
FSL on that aspect arose because of the dispute as to the rate of rent with
respect to the suit premises. In Delhi, if rent is more than Rs.3,500/- per month,
then premises are outside the protection of the Delhi Rent Control Act, 1958
and if the rent is below Rs.3,500/- per month then tenant has protection of
Delhi Rent Control Act whereas the petitioners/plaintiffs claim that the rent is
above Rs.3,500/-, the respondents claim otherwise to deny the jurisdiction of
the civil court.
CM(M) 1080/2013 Page 2 of 5
4. CFSL informed the Court after receiving the court order dated
4.4.2011 that in order to prepare the report, further documents containing
admitted signatures of the parties were required. It is in pursuance to this
request that the petitioners filed the subject application to send to the FSL the
admitted documents containing the signatures of the petitioners/plaintiffs and
the defendants being signatures of defendants on the vakalatnama , affidavit
and the signatures of the plaintiffs on the plaint etc. It is not disputed before
me that signatures on the documents to be sent are the undisputed signatures of
the parties.
5. I may note that the right of the respondents to file reply to this
petition was closed by a learned Single Judge of this Court vide order dated
6.5.2014.
6. I am surprised at the impugned order which is passed by the trial
court in a suit for possession, damages etc against the respondents/tenants by
the petitioners/plaintiffs/landlords inasmuch as, in fact even an application on
behalf of the petitioners/plaintiffs was not required once FSL itself had asked
for further documents containing admitted signatures to prepare the expert's
report under Section 45 of the Evidence Act, 1872, pursuant to the court order
dated 4.4.2011 and the court below in fact suo moto should have asked for
documents containing admitted signatures of the parties and should have
CM(M) 1080/2013 Page 3 of 5
thereafter sent them to FSL for it to prepare the expert's report. Surprisingly
however the trial court dismissed the application filed by the
petitioners/plaintiffs.
7. Learned counsel for the respondents wanted to point out certain orders
passed by the trial court as per which according to the respondents a similar
prayer by means of the application had been dismissed including the order
dated 6.8.2013 has been declined, and to which all that is required to be stated
is that no such order is before me as admittedly the respondents filed no reply
to the present petition and the right to file the reply was closed. However even
for the sake of arguments if I assume that there is such an order by which a
similar prayer of the petitioners/plaintiffs was rejected, I do not think that such
orders are in the nature of res judicata once FSL itself requires documents
containing admitted signatures of the parties to prepare an expert report as
required in terms of the order of the trial court dated 4.4.2011 which has been
reproduced above and which order is final as it has never been set aside by any
higher court.
8. In view of the above, respondents/defendants are unnecessarily
harassing the petitioners/plaintiffs and therefore this petition is allowed with
costs of Rs.20,000/- which shall be paid by the respondents/defendants to the
CM(M) 1080/2013 Page 4 of 5
petitioners/plaintiffs within a period of six weeks from today. Petition is
allowed and disposed of accordingly in terms of the aforesaid observations.
NOVEMBER 03, 2014 VALMIKI J. MEHTA, J.
ib
