Punjab-Haryana High Court
Rakesh Kumar vs Indrawati on 9 April, 2024
Author: Alka Sarin
Bench: Alka Sarin
CR No.6899 of 2023 1 2024:PHHC:048627
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
234 CR No.6899 of 2023
Date of Decision : 09.04.2024
Rakesh Kumar ....Petitioner
VERSUS
Indrawati ....Respondent
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Amit Jain, Advocate for the petitioner.
Mr. S.S. Khurana, Advocate for the respondent.
ALKA SARIN, J. (Oral)
1. Challenge in the present revision petition is to the impugned
order dated 08.09.2023 whereby the application filed by the defendant-
petitioner for allowing the handwriting expert to take photographs of cheque
(Ex.P7) has been dismissed as also his evidence has been closed by order.
2. The brief facts relevant to the present lis are that the plaintiff-
respondent filed a suit for recovery of Rs.12,50,800/-. In para 3 of the
written statement it was specifically stated that a blank cheque had been
handed over by the defendant-petitioner to the plaintiff-respondent towards
security of Rs.5,00,000/- and no other details were filled in apart from the
signatures of the defendant-petitioner herein. It was further averred that the
plaintiff-respondent has forged the cheque by filling in the same. While
leading his evidence, an application was filed by the defendant-petitioner for
permitting the handwriting expert to take photographs of the cheque in order
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to give a report regarding the alleged forgery. The said application was
dismissed vide the impugned order dated 08.09.2023. Hence, the present
revision petition.
3. Learned counsel for the defendant-petitioner would contend
that the Trial Court has dismissed the application holding that no such
opinion was required as there was no admitted handwriting sample on the
case file to compare and moreover the difference could be observed by the
Court. It is further the contention that the evidence has wrongly been closed
and that given two effective opportunities the defendant-petitioner would
conclude his evidence.
4. Per contra learned counsel for the plaintiff-respondent has
contended that there are no admitted signatures in the present case and
further despite numerous opportunities the defendant-petitioner failed to
conclude his evidence and even the costs were not paid and that as per
Section 35B CPC once the costs are imposed it is a condition precedent for
further prosecution of the case.
5. Heard.
6. The argument of learned counsel for the plaintiff-respondent is
that once the costs are imposed under Section 35B CPC it would be a
condition precedent for further prosecution of the case. A perusal of Section
35B CPC reveals that in case the costs are not paid the same is to be
included in the decree passed. Section 35B CPC also states that the Court
may, for reasons to be recorded, make an order requiring such party to pay to
the other party such costs as would, in the opinion of the Court, be
reasonably sufficient to reimburse the other party in respect of the expenses
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incurred by him in attending the Court on that date on which the
adjournment is sought. In the present case there is no such reasoning which
has been recorded. In any case as per Section 35(2) CPC the said costs if not
paid can be included in the decree which has been passed.
7. In the present case, at the time of leading evidence an
application was filed by the defendant-petitioner for permission to
handwriting expert to take photographs of the cheque which is alleged to be
forged and fabricated in the written statement. The Trial Court has
erroneously held that there are no admitted signatures. There are signatures
on the file i.e. on the Court file itself i.e. the signatures of the plaintiff-
respondent on the plaint as well as his affidavit and on the written statement
of the defendant-petitioner as well as his affidavit. In any case, it is the
evidence of the defendant-petitioner which has to be led and the Court has
not been requested to send the said document for FSL examination that the
admitted signatures were required for comparison. The plaintiff-respondent
would have her opportunity to rebut the said evidence.
8. In view of the above, the first part of the order passed by the
Trial Court is not sustainable in law and is accordingly set aside. The
application stands allowed accordingly.
9. The defendant-petitioner has made a statement that he is willing
to compensate the plaintiff-respondent by way of costs given two effective
opportunities. This Court deems it appropriate to grant two effective
opportunities to the defendant-petitioner to conclude his evidence subject to
payment of Rs.30,000/- as costs to be paid to the plaintiff-respondent, which
shall be a condition precedent for leading the evidence.
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10. Disposed off in the above terms. Pending applications, if any,
also stand disposed off.
( ALKA SARIN )
09.04.2024 JUDGE
jk
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
integrity of this order/judgment
