Madhya Pradesh High Court
Vishnuprasad vs Sarveshwar on 24 February, 2021
Author: Vivek Rusia
Misc. Petition No.448 of 2021
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HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
(SINGLE BENCH: HON'BLE Mr. JUSTICE VIVEK RUSIA)
Misc. Petition No.448 of 2021
(Vishnuprasad and another V/s Sarveshwar)
Indore, Dated: 24.02.2021:
Shri B.I. Mehta, learned senior counsel with Shri Deepak Verma,
learned counsel for the petitioners.
Shri Chetan Joshi appeared on behalf of Shri Ayush Chandrawade
learned counsel for Respondent Nos.1 to 5.
ORDER
With the consent of parties, the writ petition is heard finally.
The petitioners/ defendants have filed the present petition being
aggrieved by the order dated 22.01.2020 by which I.A. No.03/2020 filed
by the plaintiffs has been allowed and also against the order dated
23.01.2021 whereby the application filed by the petitioner has been
dismissed by the Additional District Judge, Kannod District Dewas.
Facts of the case in short as:-
2. The respondent Nos.1 to 5/ Plaintiff filed the suit against their
father late Sukhdev (now dead) claiming 1/5th shares in the two houses
i.e. house no.157 of Ward no.2, House no.14 of Ward no.1 in village
Loharda, Tehsil Kannod, District Dewas and agricultural land bearing
no.148 area 13.209 hectare and declaration to the fact that house no.160
was purchased out of the income of the ancestral property. The
defendants filed the written statement . The suit was been partly decreed
by giving 1/4th share in the land and 2 houses to the plaintiff and
dismissed for house no.60 as the same was self-acquired property of
Sukhdev. Thereafter, the defendant no.1 and Sukhdev preferred the First
Appeal No.238/2000 before this High Court . During pendency of the
appeal, defendant no.1 Sukhdev, plaintiff nos.6 and 7 and defendant no.5
expired and accordingly application under Order 22 Rule 3 of the Code of
Civil Procedure,1908 was filed and allowed on the basis of the will of late
Sukhdev vide judgment dated 31.01.2018 this Court has set aside the
Misc. Petition No.448 of 2021
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judgment and decree and remanded the case to the trial Court to decide
afresh ascertaining the share of the parties in the ancestral part after the
death of late Sukhdev. The petitioners have amended the written
statement and claim exclusive right over the ancestral property by virtue
of the will executed by Sukhdev. Vide order dated 20.06.2018 the said
amendment was allowed which was unsuccessfully challenged by the
plaintiff in M.P. No.3118/2018 thereafter, the plaintiff amended their
plaint and claimed 1/3 share in the disputed property and also challenged
the will date 05.03.1998 is forged, fabricated and void.
The respondents/plaintiffs have filed an application under Section
45 of the Indian Evidence Act,1872 for the appointment of a handwriting
expert for comparing the signature of defendant no.1 Sukhdev with his
standard signature. The said application was opposed by the present
petitioners but vide impugned order dated 22.01.2020 the learned
Additional District Judge has allowed the application and directed the
plaintiffs to propose the name of the handwriting expert.
After the aforesaid order, Ms. Yogita Singh,LL.M. was appointed as
a handwriting expert on 27.01.2020 and she sought permission to take
photograph and marking of the signature ,which was not objected to by
the petitioners. On dated 08.01.2021 the handwriting expert sent the
report to the court .
After the receipt of the report, the present petitioners filed an
objection to the handwriting expert report. The learned Additional District
Judge has directed the plaintiff to produce Ms. Yogita Singh as a witness
to prove the handwriting report. The petitioners submitted an objection
that the signature of late Sukdev Rathi be got examined by another
qualified handwriting expert. Vide impugned order dated 23.01.2021 the
learned court has rejected the application and fixed the case for evidence
and cross-examination of the handwriting expert hence, the present
petition before this Court.
3. Shri Mehta, learned senior counsel for the petitioners/ defendants
submits that since the present petitioners being the defendants came up
with the WILL of late Sukdev therefore, they have preferential right to
Misc. Petition No.448 of 2021
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prove the WILL by examining the witness as per the provisions of Section
68 of the Indian Evidence Act and the provisions of Section 63(c) of the
Indian Succession Act and thereafter, the plaintiff may prove the WILL as
a forged document by examining the handwriting expert. Shri Mehta
learned senior counsel further submits that the petitioners are also
having the right to examine the handwriting expert in order to prove the
will.
Heard the learned counsel for the petitioners
4. After the remand, the parties have amended their pleadings. The
defendants came up with the WILL in their favour thereafter, the plaintiffs
have amended the palint challenging the validity of the WILL .The
plaintiffs have filed an application under Section 45 of the Indian Evidence
Act for examining the signature of late Sukhdev through a handwriting
expert which was allowed vide order dated 22.01.2020 thereafter, the
plaintiff proposed the name of the handwriting expert who took the
photographs and submitted the report on 08.01.2021. After submitting
the report the case was fixed for examination of handwriting expert then
the petitioners filed an objection. For one year the defendants remains
silent and did not challenge the order dated 22.01.2020. In my
considered opinion, no prejudice is going to be caused to the
defendants/petitioners if the plaintiffs examine the handwriting expert as
their witness . As per section per 137 and 138 of the Indian Evidence
Act,1872, the plaintiff has a right to begin the evidence. Thereafter
defendant gets the opportunity to cross-examination thereafter, the
plaintiff gets an opportunity for examination-in-chief as read as under :-
137. Examination-in-chief- The examination of a witness
by the party who call him shall be called his examination-
in-chief.
Cross-examination- The examination of a witness by the
adverse party shall be called his cross-examination.
Re-examination- The examination of a witness,
subsequent to the cross-examination by the party who
called him, shall be called his re-examination.
138. Order of examinations.- Witnesses shall be first
examined-in-chief, then (if the adverse party so desires)
cross-examined,then (if the party calling him so desires)
re-examined.
Misc. Petition No.448 of 2021
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The examination and cross-examination must relate to
relevant facts, but the cross-examination need not
confined to the facts to which the witness testified on his
examination-in-chief.
Direction of re-examination.-The re-examination shall be
directed to the explanation of matters referred to in cross-
examination; and, if new matter is, by permission of the
Court, introduced in re-examination, the adverse party
may further cross-examine upon that matter.
5. After closing the evidence by the plaintiffs, the defendants will get
the opportunity to cross-examination plaintiffs witness and they are free
to examine their handwriting expert with the court's permission as per
law . Therefore, learned Additional District Judge has not committed any
illegality in passing both the impugned orders. Accordingly, the Misc. The
petition is dismissed.
Certified copy as per rules.
(VIVEK RUSIA)
JUDGE
Ajit
Digitally signed by Ajit
Kamalasanan
Date: 2021.02.25 17:48:30 +05'30'
