Ram Kalyan And Ors vs Civil Judge J D And Ors
2022 Latest Caselaw 3676 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 480/2013

1.     Ram Kalyan Son Of Shri Gordhan, Village Ladpur, Tehsil
       And District Bundi
2.     Raghu Nath Son Of Shri Gordhan, Village Ladpur, Tehsil
       And District Bundi
3.     Kanhaiya Lal Son Of Shri Gordhan, Village Ladpur, Tehsil
       And District Bundi
                                                                   ----Petitioners
                                    Versus
1.     Civil Judge Senior Division And Chief Judicial Magistrate,
       Bundi, Raj.
2.     Devraj Son Of Shri Kalyanpuri
3.     Jairaj Son Of Shri Kalyanpuri
4.     Girraaj Son Of Shri Kalyanpuri
5.     Satyanarayan Son Of Shri Kalyanpuri
6.     Shankerlal Son Of Shri Kalyanpuri, Non-Petitioner Nos. 2
       To 6, Residents Of Village Suvasa, Presently Residing At
       Village Dei, Tehsil Nainva, District Bundi
7.     Mrs. Ganrajbai W/o Kalyanpuri, Village Suvasa, Presently
       Residing At Village Dei, Tehsil Nainva, District Bundi
8.     Narayan Singh Son Of Shri Kalayan Singh, Village Suvasa,
       Tehsil And District Bundi
9.     Ganesh Lal Son Of Shri Gordhan, Village Suvasa, Tehsil
       And District Bundi
                                                                 ----Respondents

For Petitioner(s)         :     Mr.Amir Aziz, Adv.
For Respondent(s)         :     None present


         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
                                     Order

10/05/2022

This Court on 12.04.2022 had adjourned the case as the

arguing counsel for the respondent was not available and as such

(2 of 4) [CW-480/2013]

the Court had directed counsel for the parties to come prepared to

argue the matter finally on 09.05.2022, at orders stage.

This Court finds that no one is present on behalf of the

respondents.

Learned counsel Mr.Amir Aziz for the petitioners submitted

that the petitioners are defendants in the suit filed by the

petitioners-non plaintiffs and Trial of the case is pending since

2006 and this Court on 31.01.2013 had directed the Trial Court to

proceed with the trial, but final judgment was not to be passed.

Learned counsel for the petitioner submitted that the

impugned order dated 30.11.2012 has dismissed the application

filed by the petitioner under Section 45 of the Indian Evidence Act.

Learned counsel for the petitioner submitted that the

petitioner by filing an application under Section 45 of the Indian

Evidence Act had requested the Court below to obtain the opinion

of Expert in respect of signatures, said to be put by late father of

the plaintiffs.

Learned counsel submitted that the Court below has

dismissed the application filed on the ground that power under

Section 73 of the Indian Evidence Act can be exercised by the

Court at the relevant stage.

Learned counsel submitted that another reason of not

accepting the application is with regard to delay caused by the

petitioners, as evidence of the plaintiffs were already completed

and evidence of the respondents were also recorded.

Learned counsel for the petitioners submitted that the

comparison of signatures on two different documents were

necessary for deciding the suit and accordingly an application

under Section 45 of the Evidence Act was also filed.

(3 of 4) [CW-480/2013]

I have heard the submissions made by learned counsel for

the petitioners and gone through the order passed by the Court

below.

This Court finds that the petitioners by moving the

application had requested that there was some variance in the

signatures of late father of the plaintiffs in two documents marked

as Annexure-1 and Annex.15

This Court further finds that the Court below was required to

take into account the Expert opinion which can be obtained under

Section 45 of the Evidence Act.

This Court finds that Section 73 of the Indian Evidence Act

though provides for comparison of signatures/handwriting/finger

Impression etc., however, the Trial Court is also required to ask

the person to remain present in the Court to put the

signatures/handwriting for the purpose of comparing with the

words or figures alleged to have been written by such persons.

This Court finds that late father of the plaintiffs has already

expired and as such the said person cannot be directed to be

present in the Court for the purpose of comparison of signatures.

This Court finds that the Court below has wrongly rejected

the application filed by the petitioners and it ought to have

referred the matter for obtaining the Expert opinion.

This Court accordingly allows the present writ petition and

sets aside the order dated 29.11.2012 and directs the Trial Court

to get the Expert opinion expeditiously, as the suit is not

proceeding further because of the interim order passed by this

Court, wherein it was directed that no final order was to be

passed. The Trial Court is expected to proceed with the matter

(4 of 4) [CW-480/2013]

expeditiously after report of the Expert is received, as per Section

45 of the Evidence Act.

Accordingly, the present petition stands allowed, with the

aforesaid observations.

(ASHOK KUMAR GAUR),J

Monika/13

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