Hatheela Mali vs Babu Lal
2021 Latest Caselaw 2729 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 7227/2016

Hatheela Mali
                                                         ----Petitioner-Plaintiff
                                   Versus
Babu Lal
                                                  ----Respondent-Defendant

For Petitioner(s)         :    None present
For Respondent(s)         :    Ms. Sudesh Kasana, Advocate
                               (through VC)



            HON'BLE MR. JUSTICE PRAKASH GUPTA

                                    Order

08/07/2021

Matter comes up on an application under Article 226(3)

of the Constitution of India for vacating the ex-parte interim order

dated 1.6.2016 passed by the Coordinate Bench of this Court.

Facts of the case are that the petitioner-plaintiff (for

short, 'the plaintiff') filed a suit for specific performance and

permanent injunction against the defendants. During the

pendency of the suit, the plaintiff filed an application for

comparison of the admitted signatures of the defendant's father

with the signatures on agreement (Ex.-1) from hand writing

expert.

Taking into consideration the fact that original record of

Gram Panchayat was already available, on which basis the Court

itself could compare the admitted signatures with that of disputes

signatures under Section 73 of the Evidence Act as also in view of

the fact that expert report is merely an opinion, on which basis

the matter could not be decided finally, the trial court dismissed

(2 of 2) [CW-7227/2016]

the said application vide its order dated 13.4.2016. The said order

dated 13.4.2016 passed by the Trial Court was challenged by the

plaintiff filed by filing the aforesaid writ petition, wherein ex-parte

interim order dated 1.6.2016 was passed by the Coordinate

Bench of this Court.

None appears for the plaintiff.

Learned counsel for the defendants submits that when

the evidence has already been recorded by the trial court in

relation to a document and the defendant denies the existence of

that document, it is for the Court to consider the evidence which

has come on record at appropriate stage. In support of her

contentions, she has placed reliance on the judgment passed by

the Coordinate Bench of this Court in the case of Mangal Kishore

Versus Brij Kishore reported in 2018 (2) WLC (Raj.) UC 779. She

further submits that vide order dated 1.6.2016, further

proceedings in the suit was stayed. Thereafter 5 years have been

passed and no progress in the suit has taken place, due to which

the defendant is suffering adversely. Hence, the ex-parte interim

order dated 1.6.2016 be vacated.

Having heard the learned counsel for the defendant

and considering the material on record, the application is allowed

and the ex-parte interim order dated 1.6.2016 is vacated.

(PRAKASH GUPTA),J

DILIP KHANDELWAL /13

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