Madhya Pradesh High Court
Shankar Prasad Gupta vs Rammani on 22 March, 2022
Author: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 22nd OF MARCH, 2022
MISC. PETITION No. 1087 of 2017
Between:-
1. SHANKAR PRASAD GUPTA S/O KAUSHAL PRASAD GUPTA ,
AGED ABOUT 26 YEARS, OCCUPATION: CULTIVATION
GRAM KOTARKALA, TEH. GOPADBANAS DISTT. DISTT.
SIDHI(M.P.) (MADHYA PRADESH)
2. SMT. GEETA GUPTA S/O SHANKAR PRASAD GUPTA , AGED
ABOUT 25 YEARS, OCCUPATION: CULTIVATION R/O GRAM
KOTARKALA, TEHSIL GOPADBANAS, THANA SIDHI
(MADHYA PRADESH)
.....PETITIONER
(BY MS. SANJANA SAHNI, ADVOCATE )
AND
1. RAMMANI S/O SURAJ PARSAD GUPTA , AGED ABOUT 65
Y E A R S , OCCUPATION: CULTIVATION KOTARKALA
TEH.GOPADBANAS, THANA SIDHI DISTT. SIDHI (M.P.)
(MADHYA PRADESH)
2. MANGLESHWAR PRASAD GUPTA S/O RAMMANI BANI ,
AGED ABOUT 42 YEARS, OCCUPATION: CULTIVATION R/O
GRAM KOTARKALA, TEHSIL GOPADBANAS, THANA SIDHI
(MADHYA PRADESH)
3. RAKESH KUMAR GUPTA S/O RAMMANI BANI , AGED
ABOUT 25 YEARS, OCCUPATION: CULTIVATION R/O GRAM
KOTARKALA, TEHSIL GOPADBANAS, THANA SIDHI
(MADHYA PRADESH)
4. SURYANARAYAN BANI S/O RAMMANI BANI , AGED ABOUT
30 YEARS, OCCUPATION: CULTIVATION R/O GRAM
KOTARKALA, TEHSIL GOPADBANAS, THANA SIDHI
(MADHYA PRADESH)
5. SMT. SHANTI W/O RAMMANI BANI , AGED ABOUT 60
Y E A R S , OCCUPATION: HOUSE WIFE R/O GRAM
KOTARKALA, TEHSIL GOPADBANAS, THANA SIDHI
(MADHYA PRADESH)
6. SUMITRI D/O RAMMANI BANI , AGED ABOUT 35 YEARS,
OCCUPATION: HOUSE WIFE R/O GRAM KOTARKALA,
TEHSIL GOPADBANAS, THANA SIDHI (MADHYA PRADESH)
7. SUSHEELA D/O RAMMANI BANI , AGED ABOUT 32 YEARS,
OCCUPATION: HOUSE WIFE R/O GRAM KOTARKALA,
TEHSIL GOPADBANAS, THANA SIDHI (MADHYA PRADESH)
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8. PARWATI D/O RAMMANI BANI , AGED ABOUT 28 YEARS,
OCCUPATION: HOUSE WIFE R/O GRAM KOTARKALA,
Digitally signed by MOHD IRFAN TEHSIL GOPADBANAS, THANA SIDHI (MADHYA PRADESH)
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Date: 2022.03.24 14:44:12 IST
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9. SMT. KIRAN PATHAK W/O MAHENDRA KUMAR PATHAK
OCCUPATION: ADVOCATE R/O GRAM KOTARKALA,
TEHSIL GOPADBANAS, THANA SIDHI (MADHYA PRADESH)
10. SMT. JANKI GAUTAM W/O RAMDASH MISHRA , AGED
ABOUT 60 YEARS, OCCUPATION: HOUSEWIFE R/O GRAM
CHILRI, POST OFFICE BAGHAU THANA KAMARJI, TEHSIL
CHURHAT (MADHYA PRADESH)
11. STATE OF MADHYA PRADESH THR. COLLECTOR DISTT-
SIDHI (MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENTS EVEN IN THE SECOND ROUND DESPITE
SERVICE OF NOTICE)
This petition coming on for admission this day, the court passed the following:
ORDER
T he present petition under Article 227 of the Constitution of India has been filed
challenging the order dated 23.8.2017 passed in Civil Suit No.87-A/2016 whereby the
application filed by defendant No.1 and 2 under Section 45 of the Evidence Act for
examination by handwriting expert of signature of Rohni Prasad Mishra in the disputed sale
deed has been rejected on the ground that he is neither party to the proceedings and their is
no dispute to Rohni Prasad Mishra in the matter.
It is argued that a civil suit has been filed seeking declaration that the sale deed dated
14.11.2006 which was registered on 16.11.2006 executed in favour of defendant No.2 for a
consideration of Rs.3,65,000/- with to the suit land measuring 0.94 acre out of khasra
No.111/1/1 total area 1.73 acre, Gram Kotarkala, Tehsil Gopadbanas, District-Sidhi is null
and void and ineffective as against the interest there and in alternate for declaration that
registration of the sale deed by the Sub Registrar is without jurisdiction.
The written statement has been filed in the matter denying all the contentions. The trial
Court has framed the issues on the pleadings of the parties and fixed the matter for
recording of plaintiff evidence. The affidavits under Order 18 Rule 4 of CPC has been filed
by the plaintiff including Rohni Prasad Mishra who being the plaintiff evidence that distinct
between the sale deeds and in his deposition he has categorically denied the signature which
is on the sale deed as is reflected from para 1 of the affidavit filed by him. It is argued that
Rohni Prasad Mishra is a government servant a teacher whose signatures are in the order
sheets in the sale deed in question in affidavits and in the office of Sub Registrar, therefore,
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an application has been filed under Section 45 of the Indian Evidence Act for examination of
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the handwriting expert.
Date: 2022.03.24 14:44:12 IST
Learned trial Court after hearing the parties has passed an order dated 23.8.2017
rejecting the application on the ground that he is not a party to the suit and instead he is the
plaintiff's witness that verifying the correctness of the statements by any witness for
examination by handwriting expert of a signature which resultant delay in the matter. The sale
deed regarding the signature of Rohni Prasad Mishra sought to be examined by handwriting
expert has to be questioned by the plaintiff. The defendant is required to prove his case by
leading cogent evidence. It is argued that the order passed by the learned trial Court is
against the settled proposition of law as if a signature is denied on a particular document
which are the best available evidence can be getting it an examined through an handwriting
expert placing reliance upon the judgment passed in the case of Netlal vs. Saligram and
others, I.L.R. 2012 MP 2961 and further in the case of Ramswaroop Vs. Smt. Sunita
Bai, 2016 SCC Online MP 7450 and in the case of 2011 Vol.1 MPLJ 624 , it is
vehemently argued that for just and proper disposal of the civil suit the application under
Section 45 of the Evidence Act should have been allowed by the learned trial Court. It is
argued that Section 45 clearly provides for opinion of an expert and when the court is
required to form an opinion upon the point of Foreign Law of Science or as an identity of
handwriting or finger impression, the opinion upon the point of persons specially skilled in
such Foreign Law is material piece of evidence. It is pointed out that by allowing the
application under Section 45, it could very well be verified whether the signatures of the
witness to the sale deed are correct or not, therefore, the same should be allowed.
Heard the counsel for the petitioner and perused the record.
From the perusal of the record it is undisputed that the civil suit has been filed which
is pending consideration wherein the written statement has been filed. The trial Court has
already framed the issues and matter is at the stage of plaintiff evidence. The plaintiffs and
his witnesses have filed affidavits under Order 18 Rule 4 of CPC and in the statement of one
Rohni Prasad Mishra who happens to be the one of the attesting witness of the sale deed
has denied the signatures of the sale deed, therefore, the application under Section 45 of the
Evidence Act has been filed.
This Court vide order dated 28.11.2017, has stayed the further proceeding of the civil
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SAN suit till the next date of hearing. In pursuance to the same the further proceedings are stayed
at the evidence stage itself. The application is being filed by the petitioner who is the
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defendant in the civil suit. The evidence is yet to be led by the parties in the suit. It is a
settled proposition that the application under Section 45 of the Evidence Act should be
allowed as the last recoursement all other evidences are not available and or in failure to
demonstrate a particular aspect by leading cogent evidence.
In the present case, the witness have yet to be cross examined and the defendant is
yet to give his deposition before the learned trial Court. There is ample opportunity before
the defendant/petitioner to cross examined the witness of the aforesaid aspect. The learned
trial Court has not committed any error in rejecting an application. The defendant/petitioner
can very well be examined the plaintiffs as well as other witnesses on the aforesaid aspect.
The execution of the sale deed is yet to be proved by leading cogent evidence. in such
circumstances, when the civil suit is at the initial stage and the plaintiffs cross examination is
yet to be done, allowing an application will amount of collection of evidence which is not
permissible.
This is a petition under Article 227 of the Constitution of India having a supervisory
jurisdiction and very limited scope of interference. The aforesaid aspect was dealt with by
the Hon'ble Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shhankar
Patil reported in (2010) 8 SCC 329, wherein certain guidelines have been issued by the
Supreme Court, which are as under:-
"The scope of interference under Article 227 of the Constitution is limited.
If order is shown to be passed by a Court having no jurisdiction, it suffers from
manifest procedural impropriety o r perversity, interference can be made.
Interference is made to ensure that Courts below act within the bounds of their
authority. Another view is possible, is not a ground for interference. Interference
can be made sparingly for the said purpose and not for correcting error of facts
and law in a routine manner."
After going through the aforesaid, it is apparently clear that under Article 227 of the
Constitution of India, this Court is only required to see whether there is any procedural error
or lapses committed by the learned trial Court while considering and deciding an application.
There is no such lapses could be pointed out.
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In such circumstances, considering the judgment passed by the Hon'ble Supreme
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Court in the case of Shalini Shyam Shetty, no interference is called for in the present writ
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petition. The order passed by the learned trial Court is just and proper.
The case law which has been relied upon by the counsel for the plaintiff are on
different footings, therefore, are of no help to the petitioner. In such circumstances, in the
back drop of the fact and circumstances of the case, no illegality appears to have been
committed by the learned trial Court.
Petition sans merit and is accordingly dismissed.
Interim relief granted stands vacated.
The trial Court is directed to proceed in the matter.
Let the order be communicated to the learned trial Court for necessary compliance.
(VISHAL MISHRA)
JUDGE
irfan
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Date: 2022.03.24 14:44:12 IST
