Jharkhand High Court

Gopal Rout @ Gopal Prasad Rout vs Gopi Rout Son Of Late Girdhari Rout on 11 February, 2025

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

  IN THE HIGH COURT OF JHARKHAND, RANCHI
           C.M.P. No. 318 of 2024
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1. Gopal Rout @ Gopal Prasad Rout, aged about 77 years, son of Late Sobhan Rout.

2. Madan Rout, aged about 64 years, son of Late Gajadhar Rout.

3. Murari Rout, aged about 55 years, son of Late Gajadhar Rout.

4. Ganga Rout @ Gangadhar Rout, aged about 46 years, son of Late Gajadhar Rout.

5. Aalo Devi, aged about 47 years, widow of Late Anup Rout.

6. Kabli Devi, aged about 40 years, widow of Late Mohan Rout. All are residents of Mohalla Chhatisi (Jhaunsagarhi), P.O. - B. Deoghar, P.S. Deoghar Town, District Deoghar, Jharkhand.

.... Petitioners

-- Versus --

1. Gopi Rout son of Late Girdhari Rout

2. Chandan Rout son of Late Girdhari Rout

3. Shaligram Rout son of Late Girdhari Rout

4. Gautam Rout son of Late Girdhari Rout

5. Jagdamba Devi wife of Chakradhar Rout and daughter of Late Girdhari Rout

6. Jamuna Devi wife of Dilip Rout and daughter of Late Girdhari Rout

7. Smt. Reshmi Devi wife of Gautam Rout

8. Apurva Devi wife of Chandan Rout Sl. Nos. 1 to 4, 6, 7 and 8 all are residents of Mohalla Chhatisi (Jhaunsagarhi), PO - B., Deoghar, PS - Deoghar Town, District - Deoghar, Jharkhand Sl. No.5 is the resident of Mungeria Khatal, PO - Burnpur, PS - Burnpur, District - Burdhaman, West Bengal ...... Defendants/ O.Ps

9. Rakesh Kumar Jaiswal, son of Late Anup Rout, resident of Mohalla Chhatisi (Jhaunsagarhi), P.O. B. Deoghar, P.S.

Deoghar Town, District Deoghar, Jharkhand.

10. Karuna Devi wife of Anil Kumar and daughter of Late Anup Rout, resident of Shayam Bhawan, Kumar Patti, Maniatand, P.O. and P.S. Dhanbad, District Dhanbad.

11. Asha Devi widow of Late Shambhu Rout, resident of Mohalla Chhatisi (Jhaunsagarhi), P.O. B. Deoghar, P.S. Deoghar Town, District Deoghar, Jharkhand.

12. Durga Devi wife of Mandeshwar Mandal and daughter of Late Shambhu Rout, resident of Mohalla Chhatisi (Jhaunsagarhi), P.O. B. Deoghar, P.S. Deoghar Town, District Deoghar, Jharkhand.

13. Shivani Devi wife of Subhash Mandal and daughter of Late Shambhu Rout, resident of Kadma More, Hiramani, P.O. and P.S. Godda, District Godda, Jharkhand.

14. Maheshwari Devi wife of Basant Mandal and daughter of Late Shambhu Rout, resident of Rajghar, Padghari, P.O. and P.S. Godda, District Godda, Jharkhand.

15. Varsha Devi wife of Uttam Mandal and daughter of Late Shambhu Rout, resident of Village Chora, P.O. and P.S. Pirpainti Barhat, District Bhagalpur, Bihar.

16. Bhawani Devi wife of Sapan Rout and daughter of Late Shambhu Rout, resident of Bhaiyadih, P.O. and P.S. Sarwan, District Deoghar, Jharkhand .... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Arvind Kumar Choudhary, Advocate :- Mr. Arun Kumar, Advocate For O.P. Nos.2 & 4 to 8 :- Mr. Prashant Pallav, Advocate :- Ms. Shivani Jaluka, Advocate For O.P. No.1 :- Mr. Lalit Yadav, Advocate

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09/11.02.2025 Heard learned counsel appearing for the petitioners, learned

counsel appearing for the opposite party Nos. 2 and 4 to 8 and

learned counsel appearing for the opposite party No.1.

2. The Notice upon the opposite party No.3 is found to be

validly served and the notice upon opposite party Nos.9 and 12

have been served through family members which is recorded in the

order dated 22.11.2024.

3. Opposite Party Nos.9 to 16 are found to be proforma

opposite parties and in view of that the notice upon them have

been dispensed with by order dated 22.11.2024.

4. This petition has been filed under Article 227 of the

Constitution of India for quashing of the order dated 24.02.2024

passed by learned Sub-Judge (Sr. Division) - VIII, Deoghar in

Original Suit No.129 of 2013 whereby the learned Court has been

pleased to reject the petition dated 27.09.2023 filed by the plaintiff

under Section 45 of the Evidence Act for examination of the

signature of Gajadhar Rout and Shailja Nand Prasad.

5. Mr. Arvind Kumar Choudhary, learned counsel appearing for

the petitioners submits that the petitioners are the plaintiffs in the

suit which was instituted being Original Suit No.129 of 2013 for a

decree of declaration that the un-registered document dated

15.06.1975 and the registered deed of sale No.429 of 2013 is

illegal, void, forged and fabricated and not binding on the plaintiffs

and the cost of the suit was also prayed. He submits that on notice

the defendants have appeared and filed their written statement and

the suit is pending for evidence of the defendants after closure of

the plaintiff's evidence. He submits that on 27.09.2023, the plaintiffs

filed a petition under Section 45 of the Evidence Act for sending the

disputed and admitted documents to the handwriting expert for

examination of signature made upon the aforesaid documents

contained in Annexure-1. He submits that the rejoinder to that was

filed by the defendants and the learned Court has decided the same

by order dated 24.02.2024 and pleased to dismiss the same. He

submits that the signature on the Parwarik Vaywastha Patra is

disputed and in view of that the said petition has been filed for

comparing of the signature and the learned Court has wrongly

rejected the same. He submits that three documents have been

relied in the nature of certified copy of the sale deed for the year

1943, xerox copy of the sale deed for the year 1943 and certified

copy of Title Execution Case No.10 of 2005 along with rejoinder

petition, time petition and vakalatnama have been relied upon that

verification and the learned Court has wrongly passed the said

order. He submits that in view of Section 45, the learned Court was

expected to allow the said petition.

6. Mr. Prashant Pallav, learned counsel appearing for the

opposite party Nos.2 and 4 to 8 opposes the prayer and submits

that the learned Court has rightly rejected the said petition

considering that the contemporaneous signature and admitted

signature obtained subsequent to date of disputed signature has not

been brought on record and the learned Court has further rightly

held that in the course of time the signature of any person can

change and for Parwarik Vaywastha Patra of the year 1975 the

reliance has been placed on the signature of 1943. He submits in

view of that the learned Court has rightly passed the order.

7. Mr. Lalit Yadav, learned counsel appearing for the opposite

party No.1 adopted the argument of Mr. Prashant Pallav.

8. It is an admitted position that Original Suit No.129 of 2013

has been instituted for decree of declaration that un-registered

document dated 15.06.1975 and the registered deed of Sale No.429

of 2013 is illegal, void, forged and fabricated and not binding on the

plaintiffs. During the pendency of the suit the said petition has been

filed and the learned Court has been pleased to dismiss the same

considering that the disputed signature can be compared with

admitted signature which were contemporaneous and not to the

admitted signature obtained subsequent to the date of disputed

signature. If the signature of contemporaneous is not brought on

record the learned Court has rightly passed the said order.

9. It has been pointed out in the course of the argument by

the learned counsel appearing for the opposite parties that now the

matter is fixed for argument before the learned Court. The

petitioners have relied upon the three documents for signature

verification being certified copy of the sale deed for the year 1943,

xerox copy of the sale deed for the year 1943 and certified copy of

Title Execution Case No.10 of 2005 along with rejoinder petition,

time petition and vakalatnama. In this regard, reference may be

made to the judgment of Andhra Pradesh High Court in the case of

Byalla Devadas versus Sivapuram Rama Yogeswara Rao

reported in 2022 LiveLaw (AP) 53 wherein at paragraph No.9, it

has been held as under :-

9. At this juncture, it is appropriate to refer to the orders passed by a learned Judge in P. Padmanabhaiah v.

G.Srinivasa Rao AIR 2016 AP 118 (FB) the case of Dara Srinivasa Rao‟s case (referred (2) supra). In P.Padmanabhaiah‟s case (referred (4) supra), the defendant in O.S.No.324 of 2010 on the file of Court of the Additional Senior Civil Judge, Kurnool filed an application under Section 45 of the Indian Evidence Act to send the vakalat and written statement containing his signatures along with the promissory note (Ex.A.1) for handwriting expert for comparison of his signatures on the vakalat and written statement with the signatures said to be of him on 4 AIR 2016 AP 118 (FB) NJS, J Crp_67_ 2022 Ex.A.1 and furnish a report with opinion as to the genuineness or otherwise of the disputed signatures on the said exhibits. The said application was allowed. The learned Judge of this Court while interfering with the orders of the Trial Court had extensively dealt with the matters with reference to comparison of signatures on vakalat and written statement with the disputed documents, inter alia, held as follows:-

"In the well-considered view of this Court, the defendants signatures on the Vakalat and the Written Statement cannot be considered as signatures of comparable and assured standard as according to the plaintiff even by the date of the filing of the vakalat the defendant is clear in his mind about his stand in regard to the denial of his signatures on the suit promissory note and the endorsement thereon and as the contention of the plaintiff that the defendant might have designedly disguised his signatures on the Vakalat and the Written Statement cannot be ruled out prima facie. The view point being projected by the plaintiff

that if the defendant is called upon to furnish his signatures in open Court, he might designedly disguise his signatures while making his signatures on papers in open court is also having considerable force and merit. Unless the defendant makes available to the Court below any documents, with his signatures, of authentic and reliable nature more or less of a contemporaneous period, and unless such documents are in turn made available to the expert along with the suit promissory note, the expert will not be in a position to furnish an assured opinion, in the well considered view of this Court. .........There is no point in sending to an expert the documents of doubtful nature and character and add one more piece of unreliable evidence and burden the record by wasting the time and money of the parties. When there are no signatures of comparable and assured standard on the material record before the trial Court, it is unsafe to obtain the signatures of the defendant in open Court and send the said signatures and also his vakalat and written statement to an expert for obtaining his opinion after comparison of the signatures thereon with the disputed signatures on the suit promissory note, as any such opinion obtained from a handwriting expert on such material is not going to be of any help to the trial Court in effectively adjudicating the lis more particularly in the light of the admitted legal position that expert's opinion evidence as to handwriting or signatures can rarely, if ever, take the place of substantive evidence."

10. Admittedly, on a signature of 1943 on the basis of plaint

rejoinder and the vakalatnama of 2005 that too of photocopy and

certified copy the said has been sought to be examined on behalf of

the petitioners and by way of mechanical process does not show the

accuracy on the ground of signature, defected photocopy, therefore,

such comparison is impermissible under law and there is every

possibility of change of signature due to passage of time and there

is every possibility to sign on the document in disguise so as to

obtain a favourable opinion from handwriting expert. What is

required as per law is that any authentic contemporaneous

document containing signature of the parties to be reflected along

with disputed signature for comparison.