Omprakash Kulshrestha vs Smt.Renu Bansal
2021 Latest Caselaw 3792 MP

Citation : 2021 Latest Caselaw 3792 MP
Judgement Date : 31 July, 2021

Madhya Pradesh High Court

Omprakash Kulshrestha vs Smt.Renu Bansal on 31 July, 2021

Author: Gurpal Singh Ahluwalia

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            THE HIGH COURT OF MADHYA PRADESH
                          MP-1242-2019
            Omprakash Kulshreshtha Vs. Smt. Renu Bansal

                    Through Video Conferencing

Gwalior, Dated : 31-07-2021

      Shri Anil Kumar Saxena, Counsel for the petitioner.

      Shri N.K. Gupta, Senior Advocate with Shri Sanjay Kumar

Sharma, Counsel for the respondent.

This Miscellaneous Petition under Article 227 of the

Constitution of India has been filed against the order dated

24.01.2019 passed by Third Civil Judge, Class-I, Morena in Civil

Suit No.13-A/2013, by which the application filed by the

petitioner/plaintiff under Section 45 of Evidence Act has been

rejected.

According to the petitioner, the petitioner has filed civil suit for

specific performance of contract and permanent injunction in respect

of disputed plot bearing Survey No.463 admeasuring 39ft. x 19ft.

situated in Mauja Jaura Khurd, near District Court, Morena.

It is the case of the petitioner that on 17.01.2007 a sale

agreement was executed between the petitioner and the respondent,

by which the petitioner has agreed to purchase the aforementioned

plot. It is submitted that the respondent is not executing the sale deed

in spite of the fact that the time for executing the sale deed was

extended upto August, 2013.

THE HIGH COURT OF MADHYA PRADESH MP-1242-2019 Omprakash Kulshreshtha Vs. Smt. Renu Bansal

The respondent filed his written statement and took a plea that

agreement to sale was executed by way of loan of security and the

time was never extended and the said document is a forged

document.

The respondent/defendant filed an application under Section

45 of Evidence Act for permission to obtain the report of an expert

with regard to sale agreement dated 17.01.2007 as well as the

document, by which time was purportedly extended to execute the

sale deed. Although the petitioner opposed the said application, but

the Trial Court allowed the application and accordingly Handwriting

Expert also submitted his report.

Thereafter, the petitioner filed an application under Section 45

of Evidence Act for examination of ink of the signature on the

agreement dated 17.01.2007 as well as also to examine the document

pertaining to extension of time to execute the sale deed etc. The said

application was opposed by the respondent mainly on the ground that

the said application has been filed with delay and prayed for

dismissal of the application.

The Trial Court by the impugned order has dismissed the

application filed by the petitioner under Section 45 of the Evidence

Act on the ground that since the prayer of the respondent/defendant

THE HIGH COURT OF MADHYA PRADESH MP-1242-2019 Omprakash Kulshreshtha Vs. Smt. Renu Bansal

in this regard has already been accepted and the report of

Handwriting Expert is already on record, therefore, there is no need

to re-examine the document.

Challenging the order passed by the Court below, it is

submitted by the counsel for the petitioner that once the

respondent/defendant was allowed to get the document examined

from an expert, then the petitioner should also get an opportunity to

examine his expert in rebuttal of the evidence of the

respondent/defendant.

Per contra, the petition is vehemently opposed by the counsel

for the respondent.

Heard the learned counsel for the parties.

The only controversial question involved in the present case is

that when the respondent has got disputed document examined from

a Handwriting Expert and he is relying on the report of Handwriting

Expert, then whether the opposite party has any right to examine his

expert in rebuttal of evidence of respondent/defendant or not ? The

question is no more res integra.

This Court in the case of Nandu @ Gandharva Singh vs.

Ratiram Yadav & Ors. reported in 2019 (3) MPLJ 296 has held as

under:

THE HIGH COURT OF MADHYA PRADESH MP-1242-2019 Omprakash Kulshreshtha Vs. Smt. Renu Bansal

"14. It is undisputed fact that the application filed by the respondent no.1 for getting thumb impression on the agreement examined from the handwriting expert was allowed by the trial court and accordingly, the report of the handwriting expert has been placed on record. Under these circumstances, this Court is of the considered opinion that the trial court cannot take away the right of the petitioner\defendant to produce the report of the handwriting expert in rebuttal of the report of the handwriting expert filed by the respondent no.1/plaintiff. Thus, in the light of the judgment passed by the Division Bench of this Court in the case of Usha Sharma (supra), this Court is of the considered opinion that the order dated 6/12/2017, so far as it relates to rejection of application under Section 151 of Civil Procedure Code, is hereby set aside. Accordingly, the application filed by the petitioner under section 151 of Civil Procedure Code for producing his report of the handwriting expert in rebuttal of the report of the handwriting expert filed by the respondent No. 1/plaintiff is allowed. The trial Court is directed to proceed further in accordance with law. The interim order dated 19-1-2018 is hereby recalled."

Accordingly, the order dated 24.01.2019 passed by Third Civil

Judge, Class-I, Morena is hereby set aside. The application filed by

the petitioner/plaintiff under Section 45 of Evidence Act is hereby

allowed. The Trial Court is directed to proceed further in accordance

with law.