Rajasthan High Court
Suwa Lal S/O Harphool vs Laxman S/O Tota Ram on 22 April, 2022
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 22576/2018
1. Suwa Lal S/o Harphool, R/o Mohalla Lal Diggi, Alwar -
Deceased Through Legal Heirs
1/1. Ramji Lal S/o Suwa Lal,
1/2. Genda Lal S/o Suwa Lal,
1/3. Kishor S/o Suwa Lal,
1/4. Madan S/o Suwa Lal, R/o Lal Diggi, Alwar-Deceased
Through Legal Heirs
1/4/1 Soma Devi W/o Late Madan Lal,
1/4/2 Kumari Neeta D/o Madan Lal Saini,
1/4/3 Kumari Bhauti D/o Madan Lal,
1/4/4 Kumari Antu D/o Madan Lal Saini,
1/4/5 Kumari Jyoti D/o Madan Lal, Minor Through Their Natural
Guardian Mother Mst. Soma Devi Mother Herself Legal
Heir And In Possession Of Property Of Deceased Madan
Lal Saini
1/5 Babu Lal S/o Suwa Lal, R/o Mohalla Lal Diggi, Alwar
1/6. Sampati D/o Suwa Lal, Wife Of Sohan Lal, R/o Baniya Ka
Bag, Alwar ----Petitioners
Versus
1. Laxman S/o Tota Ram, R/o Lal Diggi, Alwar Through
General Power Of Attorney Shri Hari Lal
2. Hari Lal Son Of Bhore Lal, R/o Lal Diggi, Alwar
----Respondents
For Petitioner(s) : Mr. Jinesh Jain, Adv.
For Respondent(s) : Mr. Bipin Gupta, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
22/04/2022
(2 of 6) [CW-22576/2018]
This writ petition has been filed by the petitioners-
defendants, challenging order dated 18.08.2018, wherein
applications filed by non-petitioners-plaintiffs under Order 16 Rule
6 CPC and under Section 45 of the Indian Evidence Act, 1872 have
been allowed.
Learned counsel for the petitioners submitted that the suit
filed by the plaintiffs-non petitioners for specific performance of
contract was dismissed by judgment and decree dated
19.02.2011.
Learned counsel for the petitioner submitted that the specific
issue was framed by the Civil Court in respect of the alleged
agreement to sell dated 23.08.1980.
Learned counsel for the petitioners submitted that the said
issue was decided in favour of the present petitioners as no
contemporary evidence was led by the plaintiffs to prove that
agreement to sell was executed.
Learned counsel for the petitioners further submitted that
the Civil Court while recording the finding on issue No.1 and issue
No.2 clearly found that no application was filed to lead evidence
on behalf of the plaintiffs nor any prayer was made to have expert
opinion from Forensic Science Laboratory (FSL) or any other
expert to compare the thumb impression said to be put by
defendant Suwa Lal-deceased.
Learned counsel for the petitioners submitted that appeal
was pending before the Appellate Court and the Appellate Court in
the year 2017, allowed that application filed by the non-petitioners
and directed that the expert opinion from Forensic Science
Laboratory, may be taken in respect of the documents which are
alleged to be executed by late defendant-Suwa lal.
(3 of 6) [CW-22576/2018]
Learned counsel for the petitioners further submitted that
the Appellate Court has permitted to fill the lacuna at the
appellate stage and the same cannot be done. Learned counsel
for the petitioners further submitted that the Andhra Pradesh High
Court in the case of Smt. Renu Devi Kedia Vs. Smt. Seetha
Devi, AIR 2005 Andhra Pradesh 180, has considered the
similar issue and has held that the expert opinion cannot be
sought after a long gap and as such on the strength of the said
judgment, learned counsel for the petitioners submits that
pendency of appeal for more than 6 years was a proper ground on
which the application filed by the non-petitioners should have
been dismissed.
Learned counsel for the petitioners also places reliance on a
judgment in the case of Mamatadevi Vs. Vijaykumar Agrawal,
reported in AIR 2008 (NOC) 694 (BOM.)
Learned counsel-Mr. Bipin Gupta appearing for the
respondents submitted that the application filed by the non-
petitioners, was not only under Order 16 Rule 6 CPC but same was
also filed under Section 107 and 151 CPC.
Learned counsel for the respondents submitted that as per
power given to the Appellate Court under Section 107 of CPC, the
Appellate Court has same power and can also take the additional
evidence or such other evidence, which is required while deciding
the appeal.
Learned counsel for the respondents submitted that the
Appellate Court is fully empowered to take the additional evidence
and as such no fault can be found in the impugned order which is
assailed by the petitioners.
(4 of 6) [CW-22576/2018]
Learned counsel for the respondents also submitted that the
suit has been filed by the non-petitioners and no prejudice will be
caused to the petitioners as their suit has been dismissed and if
the opinion of expert is taken in respect of disputed documents,
no prejudice ultimately will be caused to any party and it will be
for the parties to lead other evidence to show that the document
was executed or not.
Learned counsel for the respondents places reliance on the
judgments reported in (2008) 4 SCC 530-Thiruvengadam
Pillai Vs. Navaneethammal & Anr; [2019] 5 MLJ 290-
Ramayee Vs. Kasthuri & Ors., decided by Madras High Court
and [2020] Supreme (Kar) 737-A. Narayana Vs. Gulabi V
Rai, decided by the Karnataka High Court.
I have heard the submissions made by learned counsel for
the parties.
This Court finds that the non-petitioners had filed an
application under Section 45 of the Indian Evidence Act read with
Section 107 and 151 CPC.
The contents of the application specifically mentioned that
certain documents were executed by defendant-late Suwalal and
such documents were produced in UIT, Alwar. The contents of the
application further shows that certified copies of these docuemnts
were already in possession of the non-petitioners and as such they
had requested the Court to get the thumb impression compared
with the documents which were with the UIT and in possession of
the non-petitioners.
The submission of learned counsel for the petitioners that no
lacuna should be allowed to be filled at the appellate stage, suffice
(5 of 6) [CW-22576/2018]
it to say by this Court that Section 107 CPC gives power to the
Appellate Court to take additional evidence or to take any other
evidence which is required for deciding the case.
The submission of learned counsel for the petitioners that
the belated application filed by the non-petitioners after a gap of
about 6 years and as such application should not be entertained,
suffice it to say by this Court that the suit of the non-petitioners
has been dismissed and if the application is allowed, no prejudice
can be caused to the petitioners.
This Court finds that the Civil Court while dismissing the suit
has specifically recorded a finding that plaintiffs were not able to
move any application to summon the report of an expert with
respect to the alleged thumb impressions which have been
disputed, the said reason itself was sufficient for the Appellate
Court to consider the application filed by the non-petitioners.
This Court finds that no legal error has been committed by
the court below while passing the order dated 18.08.2018.
This Court finds that the cost which has been imposed on the
non-petitioners of Rs.3,000/- to be paid to the petitioners is
insufficient.
This Court considering the entire facts of the case, deems it
proper to direct the non-petitioners to pay cost of Rs.25,000/- to
the petitioners on the next date of hearing.
Learned counsel for the petitioners at this juncture,
submitted that if this Court is not inclined to interfere in the order
passed by the court below, at least liberty should be granted to
the petitioners to lead evidence in rebuttal.
(6 of 6) [CW-22576/2018]
This Court finds that if any evidence is allowed to be led by
the non-petitioners, the petitioners will have their own right to
lead evidence in rebuttal.
Accordingly, the writ petition stands dismissed.
(ASHOK KUMAR GAUR),J
Ramesh Vaishnav/86/Bhavnesh Kumawat
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