Madhya Pradesh High Court
Murarilal Kumhar vs Khalbal Chakravarti on 13 March, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 13th OF MARCH, 2025
MISC. PETITION No. 876 of 2023
MURARILAL KUMHAR
Versus
KHALBAL CHAKRAVARTI AND OTHERS
Appearance:
Shri Sanjay Sanyal, learned counsel for the petitioner.
Shri V.P. Tiwari, learned Govt. Advocate for respondent No.10/State.
ORDER
This miscellaneous petition is filed being aggrieved of the order dated
31/01/2023 (Annexure-P/3) passed by learned 6th Civil Judge, Senior
Division, Jabalpur in RCS No.254-A/2018 whereby an application for
leading evidence of another expert witness under Section 45 of the Evidence
Act is rejected.
2. It is submitted that this is case squarely covered by the judgment of
Hon'ble Division Bench of this High Court in the case of Usha Sharma
(Smt.) Vs. Maharaj Kishan Raina and another, 2010 (1) MPJR SN
22 wherein Hon'ble Division Bench has held as under :
"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
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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 require 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 hand
writing 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 no
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 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
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to commissioner's report under Order of 26 of the CPC. Both the
provisions are different. Under Order 26 of CPC, 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 justice, party ought not to
and cannot be denied an opportunity of the similar nature."
3. Since there is no opposition from the respondents who have chosen
not to appear despite there being mentioned in the cause list, impugned order
is set aside. Petitioner is permitted to lead evidence by filing report of
another expert to rebut the report of earlier expert, however, other party shall
have a right to cross-examine the so called expert.
4. In above terms, this miscellaneous petition is allowed and disposed
of.
(VIVEK AGARWAL)
JUDGE
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