Meeni Devi vs Ghewar Chand
2023 Latest Caselaw 2846 Raj

[2023/RJJD/008871]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 16306/2019

Meeni Devi D/o Jassaram W/o Khartaram, Aged About 85 Years, By Caste Ghachi, R/o Sojat City, Tehsil Sojat City, Dist. Pali, Rajasthan.

----Petitioner Versus

1. Ghewar Chand S/o Bhikha Ram, By Caste Ganchi, R/o Bera Narawa, Sojat City, Tehsil Sojat, District Pali, Rajasthan.

2. Sub Registrar Officer, Sub Register Office, Sojat City, Tehsil Sojat, Dist Pali, Rajasthan.

                                                                  ----Respondents


For Petitioner(s)          :     Mr. Jitendra Chopra
For Respondent(s)          :     Mr. Kailash Chandra Pitawat, on VC

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 05/04/2023 Pronounced on 10/04/2023

1. This writ petition under Article 226 of the Constitution of

India has been preferred claiming the following reliefs:

"(i) It is, therefore, most humbly prayed that this Writ Petition may kindly be allowed and the impugned order dated 13.09.2019 (Annex.1) of the Additional District Judge, Sojat - Pali may kindly be declared illegal and the same may be quashed and set aside.

(ii) Any other order or direction that may be deemed fit, just and proper may kindly be issued in favour of the petitioners.

(iii) Costs may kindly be also awarded."

[2023/RJJD/008871] (2 of 7) [CW-16306/2019]

2. Brief facts of the case, as placed before this Court by learned

counsel for the petitioner, are that the present petitioner (plaintiff)

had insituted a suit for declaration of relinquishment deed dated

27.07.1999 (registered on 17.01.2000) as null and void, as well

as cancellation of gift deed dated 09.05.2016; along therewith, an

application seeking permanent injunction application was also

moved by the petitioner (plaintiff).

2.1. The learned Court below framed eight issues, including relief,

and proceeded with the trial in the said suit. Thereafter, on

28.11.2018 during the examination-in-chief, Bhanu Singh (son of

the petitioner) was presented as power of attorney holder on

behalf of the petitioner (plaintiff) and stated that due to old age

and disability certificate of 100% blindness, the petitioner was not

competent to lead evidence.

2.2. Subsequently, the petitioner (plaintiff) filed an application

under Section 45 of the Indian Evidence Act, 1872 and stated that

the thumb impression on relinquishment deed dated 27.07.1999

(registered on 17.01.2000) were not of the petitioner (plaintiff).

2.3. However, the learned Court below, after hearing the parties,

dismissed the said application filed by the petitioner (plaintiff) vide

the impugned order dated 13.09.2019. Thus, aggrieved by the

said order, the present petition has been preferred claiming the

afore-quoted reliefs.

3. Learned counsel for the petitioner (plaintiff) submitted that

in the original suit instituted by the petitioner, she had specifically

stated that she never gave thumb impression on the

relinquishment deed, and therefore, the expert opinion under

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Section 45 of the Indian Evidence Act is necessary for effective

and fair adjudication of the suit.

3.1. Learned counsel further submitted that the petitioner

(plaintiff), as per the certificate issued by the competent authority,

suffered blindness disability to the extent of 100%, which is

sufficient to call for the expert opinion regarding thumb

impression in question; also in the interest of justice and to

resolve the dispute between parties, the same is required to be

called.

3.2 In support of his submissions, learned counsel relied upon

the judgment rendered by the Hon'ble Apex Court in the case of

Ramesh Chandra Agrawal Vs Regency Hospital Ltd. & Ors.

(Civil Appeal No. 5991 of 2002 decided on 11.09.2009). He

further relied upon the judgments rendered by Coordinate

Benches of this Hon'ble Court at Jaipur Bench, in the case of

Mohru (since deceased) through L.Rs & Ors. Vs. Additional

Civil Judge (J.D.) No.1, Jaipur District, Jaipur & Ors. (S.B.

Civil Writ No. 2 of 2011 decided on 04.10.2018) and Pratap

Singh & Ors. Vs Zammi & Ors. (S.B. Civil Writ Petition No.

15255/2009 decided on 04.01.2011). He also relied upon the

judgments rendered by the Hon'ble High Court of Andhra Pradesh

in the case of Valludasu Alivelu Vs. Moguthula Yadaiah &

Anr. (C.R.P. No. 156 of 2010 decided on 31.05.2010) and

Chityalgundameede Ramalakshmamma Vs Ediga

Rangamma & Ors (Civil Revision Petition No. 28 of 2012

decided on 27.09.2012), and the judgment rendered by the

Hon'ble High Court of Allahabad in the case of Bechan Vs.

[2023/RJJD/008871] (4 of 7) [CW-16306/2019]

Deputy Director of Consolidation, Gorakhpur & Anr. (Writ-B

No. 54182 of 2016 decided on 21.11.2016).

4. On the other hand, learned counsel appearing on behalf of

the respondents, while opposing the aforesaid submissions made

on behalf of the petitioner, submitted that from the record, it

clearly transpires that the relinquishment deed 27.07.1999 was

registered on 17.01.2000, and thus, after a long period of time,

the issue regarding the thumb impression being fake and false

cannot be raised by the petitioner (plaintiff), more particularly,

when the said deed was registered before competent authority.

Therefore, as per learned counsel, the impugned order passed by

the learned Court below is justified in law, as the same was

passed after taking into due consideration the overall facts and

circumstances of the case and after duly appreciating the

evidences placed on record before it.

5. Heard learned counsel for the parties as well as perused the

record of the case along with the judgments cited at the Bar.

6. This Court observes that the relinquishment deed was

registered on 17.01.2000, and the suit in question was instituted

by the petitioner (plaintiff) for declaration thereof as null and void.

Thereafter, an affidavit was filed on behalf of the petitioner, stating

therein that the Bhanu Singh (son of the petitioner) represented

the petitioner, because she is 100% blind (as per the certificate)

and thus, cannot be termed as a competent witness. The

respondent (defendant) during the trial of the suit, filed an

application under Section 151 CPC, which was allowed by the

learned Court below after considering the law position, while

[2023/RJJD/008871] (5 of 7) [CW-16306/2019]

directing that the affidavit of Bhanu Singh shall be kept in part 'D'

of the plaint.

7. This Court further observes that the petitioner (plaintiff) filed

an application under Section 45 of the Indian Evidence Act,

praying for calling of the expert opinion regarding the genuineness

of his thumb impression, but the same was dismissed by the

learned Court below vide the impugned order dated 13.09.2019.

8. This Court also observes that the relinquishment deed in

question dated 27.07.1999 was registered in the year 2000, and

thus, after a lapse of so many years, raising an objection

regarding thumb impression of the petitioner thereon, in the given

factual matrix, was not an appropriate course under the law.

9. This Court further observes that after a long period from the

date of filing of the suit in question, by filing the application under

Section 45 of the Indian Evidence Act, the petitioner (plaintiff)

sought calling of a report from a particular handwriting and finger

print expert, namely, Smt. Renuka Kumari Charan, regarding the

credibility of the thumb impression in question, which in the

attendant facts and circumstances of the case, cannot be

permissible, and thus, the said application was rightly dismissed

by the learned court below vide the impugned order.

9.1 Moreover, the learned court below in the impugned order

also took note of the fact that the petitioner (plaintiff) also did not

furnish the list of witness in the suit within time, and that, by filing

the application under Section 151 CPC, which, as per the record,

was allowed by the learned court below, the respondent

(defendant) called into question the filing of an affidavit of her

[2023/RJJD/008871] (6 of 7) [CW-16306/2019]

(plaintiff/petitioner's) power of attorney, instead of her own, which

had already been kept in part 'D' by the learned Court below vide

order dated 28.03.2019.

10. This Court finds that the learned Court below in the

impugned order also observed that as per Order 18 Rule 3-A CPC,

"Where a party himself wishes to appear as a witness, he shall so

appear before any other witness on his behalf has been examined,

unless the Court, for reasons to be recorded permits him to

appear as his own witness at a later stage"; the learned Court

below further observed that in the original suit, vide order dated

20.09.2018, a direction was given to present a list of witnesses

within time prescribed under the law; in compliance of such order,

the respondent (defendant) submitted a list of witnesses on

09.10.2018, but the petitioner (plaintiff) has not furnished such a

list of witnesses before the learned Court below. Thus, the same

clearly makes the bona fides of the petitioner (plaintiff) doubtful,

in the given factual matrix.

11. This Court further finds that the affidavit of son (power of

attorney) of the petitioner had been already ordered to be kept in

part 'D' by the learned Court below.

12. Thus, in the attendant facts and circumstances of the case,

this Court finds that the learned Court below has passed a well

reasoned speaking order, which does not call for any interference

by this Court.

13. The judgments cited on behalf of the petitioner also do not

render any assistance to her case, in the present factual matrix.

[2023/RJJD/008871] (7 of 7) [CW-16306/2019]

14. Consequently, the present petition is dismissed. However, the

learned trial court is directed decide the suit expeditiously strictly

in accordance with law. All pending applications stand disposed

of.

(DR.PUSHPENDRA SINGH BHATI),J SKant/-

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