Madhya Pradesh High Court
Subhash Jagirdar vs Nandkishore on 21 April, 2023
Author: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
MISC. PETITION No. 4309 of 2021
BETWEEN:-
SUBHASH JAGIRDAR S/O LATE
CHANDRASENRAO JAGIRDAR, AGED
ABOUT 56 YEARS, OCCUPATION:
AGRICULTURE VILL-TILLORE KHURD
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI ASHOK KUMAR SETHI, SENIOR ADVOCATE WITH SHRI
ASHUTOSH NIMGAONKAR, ADVOCATE)
AND
NANDKISHORE S/O RAMKISHAN
PATIDAR, AGED ABOUT 68 YEARS,
1.
OCCUPATION: AGRICULUTRE VILL-
TILLOR KHURD (MADHYA PRADESH)
HARINARAYAN S/O RAMKISHAN
PATIDAR, AGED ABOUT 63 YEARS,
2. OCCUPATION: AGRICULTURE VILLAGE
TILLOR KHURD TEHSIL AND DIST
INDORE (MADHYA PRADESH)
3. M/S ASHIRWAD SKYHEIGHTS TOWERS
PRIVATE LIMITED THROUGH ITS
DIRECTOR MAHENDRA SINGH S/O
HARPATSINGH REGISTERED OFFICE
SOCIETY NO. 75 SARDAR VALLABH BHAI
PATEL MARG, MHADA ANDHRI WEST
MUMBAI (MAH) R/O E-14, SCHEME NO. 54
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2
VIJAY NAGAR INDORE (MADHYA
PRADESH)
STATE OF M.P. THR COLLECTOR
4. SATELLITE BUILDING MOTI TABELA
INDORE (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENTS NO.1 & 2 BY SHRI VEER KUMAR JAIN, SENIOR
ADVOCATE WITH SHRI VAIBHAV BHAGWAT - ADVOCATE AND
RESPONDENT NO.3 BY SHRI VINAY SARAF, SENIOR ADVOCATE WITH
SHRI RISHI SHRIVASTAVA - ADVOCATE)
.................................................................................................................
Reserved on : 18.01.2023
Pronounced on : 21.04.2023
................................................................................................................
This petition having been heard and reserved for orders, coming
on for pronouncement this day, the court passed the following:
ORDER
1. By this petition preferred under Article 227 of the
Constitution of India the petitioner/defendant No.1 has
challenged the order dated 27.10.2021 passed in Civil Suit
No.200054A/2016 by the 11th Additional District Judge,
Indore whereby his application under Section 45 of the
Evidence Act for examination of signatures of
plaintiffs/respondents 1 and 2 on the questioned document has
been rejected.
2. The facts in brief are that on 15.06.2009 the plaintiffs instituted
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an action for declaration that the sale deed dated 31.03.2008 executed
by defendant No.1 in favour of defendant No.2 on strength of forged
and fabricated power of attorney dated 23.03.2008 alleged executed by
them in favour of defendant No.1 is null and void and for permanent
injunction restraining the defendants from interfering with their
possession over the suit land. The claim has been contested by
defendant No.1 by filing his written statement to the same.
3. On 05.10.2017 the defendant No.1 filed an application under
Section 45 of the Evidence Act for examination of signatures and thumb
impressions of plaintiffs on the agreement to sale dated 14.08.1996,
power of attorney dated 06.11.1996 and Sahamati Patra dated
22.11.2007 by a hand writing expert with the documents available on
record containing the signatures of plaintiffs. The application was
contested by the plaintiffs and has been rejected by the trial Court by
the impugned order on the ground that the same has been filed after
closure of evidence of defendant No.1 and 2 and after submission of
report of hand writing expert appointed at the behest of plaintiffs. It has
further observed that a report of hand writing expert prepared prior to
filing of the suit is already available on record and during pendency of
the suit also another report on the questioned documents has been
received, hence there is no requirement of any further report of hand
writing expert.
4. Learned counsel for the defendant No.1/petitioner submits that
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the trial court has erred in rejecting the application filed by him. There
was no delay in filing the same. The application was filed on
05.10.2017 reply to which was filed by plaintiffs on 20.10.2017
whereas the same was eventually decided on 27.10.2021 i.e. after a
period of almost 4 years for which defendant No.1 cannot be blamed.
Similar application filed by plaintiffs was also allowed by the trial
Court by order dated 04.08.2015 after closure of evidence of the parties
hence for maintaining parity defendant No.1 also should have been
granted opportunity to seek report of a hand writing expert. The trial
Court has adopted duel standards in the matter by allowing the
application of plaintiffs in same fact situation and rejecting the
application of defendant No.1. The report filed by the hand writing
expert on the application of plaintiffs having been allowed by the trial
Court is already subject matter of cross-examination hence the stage of
the suit is not where defendant No.1 could not have been permitted to
seek his own report of hand writing expert. On 09.11.2021 plaintiffs
have already filed an affidavit in evidence hence the stage of the suit is
where allowing of application of defendant No.1 would not cause any
delay in the trial or prejudice to the plaintiffs. It is hence submitted that
the application filed by defendant No.1 ought to have been allowed.
Reliance has been placed by him on the decision of this Court in
Chenram S/o Parasramji Patidar V/s. Banshilal S/o Radhakishanji
Suthar 2017 (3) MPLJ 592 and Nandu @ Gandharva Singh V/s.
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Ratiram Yadav and Others 2019 (3) MPLJ 296.
5. Per contra learned counsel for plaintiffs/respondents 1 and 2 has
submitted that the application filed by defendant No.1 was extremely
belated and has rightly been rejected by the trial Court. The evidence of
plaintiffs had been completed on 18.07.2014 after which evidence of
defendants was also completed. The application under consideration
was however filed by defendant No.1 on 05.10.2017. No right was
reserved by defendant No.1 in that regard. After closure of evidence,
plaintiffs were allowed permission to lead evidence on issues reserved
by the trial Court itself for a later stage. It is only at that stage plaintiffs
filed application for appointment of a hand writing expert which was
allowed by the trial Court. There is hence no parity as regards the
application filed by plaintiffs and that filed by defendant No.1 which
have been filed under absolutely different fact situation. Defendant
No.1 had himself opposed the application filed by plaintiffs for
appointment of hand writing expert on the ground that a report is
already available on record hence now cannot claim such a relief
himself. The appointment of hand writing expert at the instance of
plaintiffs was never challenged by defendant No.1, who hence cannot
seek appointment of his own handwriting expert. The report received in
the Court pursuant to allowing of application of plaintiffs would be a
report of the Court and not a private report of plaintiffs hence no more
report on the very same issue is required. It is only because the report
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submitted by the hand writing expert is against defendant No.1 that he
has sought for appointment of his own hand writing expert. The petition
hence deserves to be dismissed
6. I have heard learned counsel for the parties and have perused the
record.
7. The report of the hand writing expert namely of Shri Tuteja
which was filed by plaintiffs at the time of filing of the plaint was prior
in point of time to filing of suit. The same was hence a report at the
instance of plaintiffs and was not a report of the Court. The evidence of
plaintiffs was closed on 18.07.2014 after which defendant's evidence
was also completed and closed. Thereafter plaintiffs filed an application
under Section 45 of the Evidence Act for appointment of a hand writing
expert in respect of the questioned documents which was allowed by
the trial Court on 04.08.2015 pursuant to which report of the hand
writing expert has been received in the Court on which cross-
examination has been conducted. Since the said report was upon
allowing of an application filed by plaintiffs in that regard, the same
cannot be said to be a report of the Court but would be a report received
at the instance of plaintiffs.
8. Since at the instance of plaintiffs a report of a hand writing expert
was requisitioned, which is not a report of the Court, on the ground of
parity defendant No.1 is also entitled for seeking such a report from his
own hand writing expert even though the report submitted by the hand
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writing expert on allowing of application of plaintiffs may be against
him.
9. The application of plaintiffs for appointment of a hand writing
expert was allowed by the trial Court after closure of evidence hence it
is not open for plaintiffs to contend that the application filed by
defendant No.1 is belated the same having been filed after closure of
evidence of the parties nor could have the trial Court held so. The
application was filed by defendant No.1 on 05.10.2017 and reply to the
same was filed by plaintiffs on 20.10.2017 whereas the same has been
decided only on 27.10.2021 hence for all this period the delay is on part
of the trial Court and not on part of defendant No.1 who hence cannot
be blamed for the same. The entire proceedings do not reflect any
deliberate delay on part of defendant No.1 in filing the application
under consideration.
10. Only for the reason that cross-examination on report obtained at
the instance of plaintiffs is in progress and as per defendant No.1 the
said report is against him, he cannot be denied the opportunity of
seeking a fresh report of the hand writing expert at his instance.
Moreover it is seen that on 09.11.2021 an affidavit in evidence of
plaintiff's witness has been filed on which cross-examination is to be
conducted. The suit has hence not reached a stage where it can be said
that the proceedings have been concluded. Merely because there is a
report of the hand writing expert filed along with the plaint it would not
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preclude defendant No.1 from seeking a report at his own instance nor
was it necessary for him to have reserved any such right at the time
when plaintiff's application for the same purpose was allowed.
11. Though defendant No.1 had opposed the application filed by
plaintiffs on the ground that a report is already on record but the fact
remains that such objection was not entertained by the trial Court which
allowed application of plaintiffs. Since objection of defendant No.1 as
above was negatived, it did not preclude him from filing his own
application despite the fact that such a report was filed along with the
plaint. It was not necessary for defendant No.1 to have challenged the
appointment of handwriting expert at the instance of plaintiffs for him
to seek report of a handwriting expert of his own since he is claiming
parity by contending that since plaintiffs have been permitted to obtain
report of hand writing expert, he also should be permitted to do the
same.
12. In Chenram (supra) it was held by this Court in paragraph 5 to 7
as under :-
"5. Having heard learned counsel for the parties and on perusal
of the record, it is noticed that so far as the petitioner's objection
to the report of handwriting expert submitted by the respondent,
the trial Court has rightly held that petitioner will have
opportunity to counter the same at the stage of evidence. So far as
the petitioner's prayer for granting permission to obtain report of
his own handwriting expert is concerned, the said issue has not
been properly dealt with by the trial Court. Division Bench of this
Court in the matter of Usha Sharma (Smt.) v. Maharaj Kishan
Raina, 2010 (1) MPJR SN 22 has held as under:--
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"It is true that the supervisory jurisdiction of the High Court
under Article 227 of the Constitutions if limited to see that
inferior Court or the Tribunal functions within the limit of the
authority provided to it. However, if the function of inferior Court
appears erroneous to the extent showing its working not as per the
authority, then of course the hands of this Court are not closed.
Proper function of the Courts working under this Court also
required to be seen as has been observed by the Apex Court in the
case of Mohd. Yunus (supra). In our considered opinion, denying
desired opportunity to the petitioner for rebuttal is not justified.
Particularly, in the facts and circumstances of this case, in which
according to the petitioner a fraud has been played by the
respondents while shaking hands with each other with regard to
property belonging to her. According to her, the respondent No. 1
filed a collusive suit for specific performance against the
respondent No. 2 and in Lok Adalat on compromise, the
respondent No. 1 has obtained decree behind the back of the
petitioner. When one party has been provided and has availed an
opportunity to produce opinion of a handwriting expert in his
favour, the request of the opposite party for producing the similar
type of evidence in rebuttal, appears appropriate. As observed in
the case of Babulal (supra), such a course is not prohibited by
law. As per observation of this Court in the case of Jai Narayan
(supra) the opposite party should also be allowed to adduce
evidence in rebuttal under section 45 of the Indian Evidence Act.
Similar view appears has been taken by the another Single Bench
of this Court in case of Rajendra Singh (supra) which was also a
petition under Article 227 of the Constitution.
The judgment cited on behalf of the respondents are with
regard to Commissioner's report under Order 26 of the Civil
Procedure Code. Both the provisions are different. Under Order
26 of Civil Procedure Code, commissions are to be issued for
examination of witnesses, or for local investigation or scientific
investigation, etc.. The present dispute is related to seeking and
filing of an opinion of an expert which is admissible in evidence
under section 45 of the Indian Evidence Act. If report of a
particular expert, is against the interest of opposite party, on
request, such opposite party also deserves to be permitted to call
such report in rebuttal. No doubt some times cross examination of
the expert concerned with the help of another expert, may serve
the purpose, but not always. Even on the principle of natural
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justice, party ought not to and cannot be denied an opportunity of
the similar nature."
6. Though the trial Court has noted the aforesaid judgment
but has wrongly distinguished it on facts without considering the
ratio of the said judgment. Similarly in the matter of Jai Narayan
v. Satya Narayan, 1991 M.P.L.J. 768 : 1991 JLJ 428, this Court
has held that if the defendant has adduced the handwriting expert's
report in his evidence, then the plaintiff should be allowed to
produce evidence in rebuttal.
7. Having regard to the aforesaid aspect of the matter, part of
the order of the trial Court rejecting the petitioner's prayer for
permission to obtain his own handwriting expert's report is hereby
set aside and trial Court is directed to consider the said prayer
afresh in accordance with law keeping in view the aforesaid
judgments."
13. In Nandu @ Gandharva Singh (supra) it was held in
paragraph No.14 as under :-
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.
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14. The fact situation of the present case is similar to the fact
situation of the aforesaid decisions. Since there is a report of a hand
writing expert obtained at the instance of plaintiffs, defendant No.1 has
a right to obtain report of his own hand writing expert. The same would
be in the nature of rebuttal to the report obtained at the instance of
plaintiffs. Thus in my opinion, the application filed by defendant No.1
under Section 45 of the Evidence Act ought to have been allowed by the
trial Court.
15. As a result of the aforesaid discussion, the impugned order dated
27.10.2021 passed by the trial Court cannot be sustained and is hereby
set aside. The application under Section 45 of the Evidence Act dated
05.10.2017 filed by defendant No.1 stands allowed.
16. There shall be no order as to costs.
(PRANAY VERMA)
JUDGE
ns
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