Hanuman Das vs Rajesh Dave
2023 Latest Caselaw 6664 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4009/2019

Hanuman Das S/o Shri Ram Chandra, Aged About 43 Years, B/c Vaishnav, Maheshwari Ka Bas, Sojat City, Pali. Business Address- Kiran Electric , Police Station Road, Sojat City Tehsil Sojat District Pali.

----Petitioner Versus Rajesh Dave S/o Shri Mangi Lal, B/c Shrimali, Boneya Ka Bas, Sojat City, Tehsil Sojat District Pali.

                                                                    ----Respondent


For Petitioner(s)             :   Ms. Deepika Soni
For Respondent(s)             :   Mr. J.K. Bhaiya



             HON'BLE DR. JUSTICE NUPUR BHATI

                                       Order

Reserved on               :       25/08/2023
Pronounced on             :       31/08/2023

(1) The present writ petition has been filed under Articles 226

and 227 of the Constitution of India with the following prayers:-

"(i) the impugned order dated 16.01.2019 (Ann.6) passed by learned Senior Civil Judge, Sojat District Pali in Civil Original Suit No.01/2016 may kindly be quashed and set aside.

(ii) the application under section 45 of Indian Evidence Act filed by the petitioner may kindly be ordered to be allowed as prayed for."

(2) The brief facts of the case giving rise to the present

controversy are that the respondent-plaintiff filed a suit under

Order 37 CPC for recovery of Rs.4,56,000/- against the petitioner-

defendant before the court of learned Senior Civil Judge, Sojat

City (for short, 'the learned trial Court') stating therein that the

(2 of 7) [CW-4009/2019]

respondent - plaintiff is having good acquaintance with the

petitioner-defendant and since the petitioner-defendant was in

personal need, he demanded Rs.4,00,000/- from the respondent-

plaintiff on 04.01.205 and promised to refund the same along with

interest @ Re.1/- per hundred per month on 04.01.2016 and also

executed a promissory note appending his signature in favour of

the respondent-plaintiff. The said promissory note is also having

signature of witnesses, namely, Arun Kumar and Rakesh Sankhla.

(3) It was further stated in the plaint that the respondent-

plaintiff demanded the loan amount and interest on 05.01.2016

and again on 01.02.2016, the petitioner-defendant refused to

refund the same. Therefore, he served a legal notice upon the

petitioner-plaintiff.

(4) The petitioner-defendant filed written statement to the plaint

and stated that the petitioner-defendant has not borrowed

Rs.4,00,000/- from the respondent-plaintiff and thus, there was

no question of executing promissory note and submitted that the

so-called promissory note is fabricated and forged. It was also

stated that the respondent-defendant did not know the said

witnesses, namely, Arun Kumar and Rakesh Sankhla.

(5) On the basis of the pleadings of the parties, the learned trial

Court framed the following issues:-

"1& D;k oknh izfroknh ls 4]56]000@& :i;s e; okn nk;jh ls rkvnk;xh rd ;qfDr ;qDr C;kt izkIr djus dk vf/kdkjh gS?

2& vk;k oknh dk okn fo:) izfroknh okn dkj.k ds vHkko esa [kkfjt gksus ;ksX; gS?

      3&    vk;k izkesljh uksV QthZ o dwVjfpr gS?
      4&    vuqrks'k?"




                                       (3 of 7)                            [CW-4009/2019]



(6)    During the pendency of the suit, the petitioner-defendant

filed an application under Section 45 of the Indian Evidence Act

stating that the promissory note does not bear the signature of

the petitioner-defendant and the same is forged and fabricated

and, therefore, prayed that the promissory note may be sent for

examination to the FSL.

(7) The learned trial Court, after hearing the arguments of rival

parties, dismissed the application filed by the petitioner-defendant

under Section 45 of the Indian Evidence Act vide order dated

16.012019.

(8) The petitioner-defendant, therefore, being aggrieved of the

order dated 16.01.2019 (Annex.6), passed by the learned trial

Court, has preferred this writ petition.

(9) The learned counsel for the petitioner-defendant submits

that the learned trial Court has committed grave illegality in

passing the impugned order while denying the opportunity of

rebuttal.

(10) The learned counsel for the petitioner-defendant further

submitted that since inception, it was the contention of the

petitioner-defendant that the alleged promissory note did not bear

his signature and the same was forged and fabricated but the

learned trial Court had dismissed the application on the ground

that the petitioner-defendant was trying to linger on the

proceedings of the suit.

(11) The learned counsel for the petitioner also submitted that the

learned trial Court dismissed the application of the petitioner-

defendant on the ground that in this regard issue No.3, as quoted

hereinabove, has already been framed and the petitioner-

(4 of 7) [CW-4009/2019]

defendant can cross-examine the attesting witnesses of the

alleged promissory note at the time of evidence and would also

get the chance to lead his evidence in this regard. Learned counsel

submits that the petitioner-defendant has denied his signature on

the alleged promissory note and the same can only be proved by

the report of the handwriting expert or FSL. Therefore, the learned

trial Court has committed illegality while passing the impugned

order.

(12) Learned counsel for the petitioner-defendant has placed

reliance upon the judgments rendered by the Kerela High Court in

the cases of C.P. Indira Dev Vs. T.V. Narayan Panicker [WP(C)

No.2128 of 2007, decided on 23.01.2007] and Joju M.D. Vs.

Koysallya & Anr. [OP (C) No.1952 of 2016, decided on

14.03.2017].

(13) Per contra, the learned counsel for the respondent-plaintiff

submitted that issue in regard to the veracity of the promissory

note has already been framed and the petitioner will have ample

opportunity to cross-examine the attesting witnesses and also to

lead his evidence and thus, the learned trial Court has not

committed any illegality while rejecting the application of the

petitioner-defendant filed under Section 45 of the Evidence Act,

1872.

(14) Learned counsel for the respondent-plaintiff further

submitted that while filing the application under Section 45 of the

Indian Evidence Act, 1872 the petitioner-defendant has not

provided any signature for comparison and the application is after-

thought just to delay the proceedings.

(5 of 7) [CW-4009/2019]

(15) Learned counsel for the respondent-plaintiff also submitted

at Bar that in the suit proceedings, evidence of the respondent-

plaintiff is already completed and the said document (promissory

note) has also been exhibited. Therefore, at this stage, no

interference can be made with the impugned order and thus,

prayed that the writ petition may be dismissed.

(16) Learned counsel for the respondent-plaintiff placed reliance

upon the judgments rendered in the cases of Ashok Kumar Jain

Vs. Nathhi Lal Jain & Anr. [2011(3) DNJ (Raj.) 1319], P.

Padmanabhaiah Vs. G. Srinivasa Rao [(2017) 2 CivCC 131],

Mohammed Yakub Vs. Abdul Rauf [(2020) 4 DNJ 967] and

Jardaar Khan Vs. Tunda Ram [(2022) 2 RLW 1323].

(17) Heard learned counsel for the parties and perused the

material available on record.

(18) This Court finds that the respondent-plaintiff filed the suit

under Order 37 CPC which came to be registered as Case

No.1/2016. The petitioner-defendant filed written statement to the

plaint on 29.11.2017. At that time, the promissory note in

question was well within the knowledge of the petitioner-

defendant. The learned trial Court framed four issues on

25.04.2019 in which issue No.3 is whether the promissory note is

forged and fraudulent? The veracity of the document in question

would be duly examined by the learned trial Court while dealing

with issue No.3 and thus, there is no iota of doubt that the

petitioner-defendant would also get the chance to lead evidence in

this regard. The petitioner-filed the application under Section 45 of

the Indian Evidence Act, 1872 after a delay of about 10 months 5

days from the date of filing the written statement, as the said

(6 of 7) [CW-4009/2019]

application was filed on 03.10.2018. The suit below is pending

before the learned trial Court for the last 7 years.

(19) The fact that as soon as the summons were served upon the

petitioner-defendant, the promissory note in question was in his

knowledge as the petitioner-defendant in his written statement to

the plaint, has not only denied the execution of the promissory

note, also has categorically denied the signatures on it. Thus, it

was open for the petitioner-defendant to implore the learned trial

Court for sending the document in question to the handwriting

expert for the opinion at the time when written statement was

filed. But, the petitioner-defendant awakened after a delay of 10

months 5 days.

(20) The learned counsel for the parties were inquired about the

stage of the suit to which learned counsel for the respondent-

plaintiff stated at Bar that the evidence of the respondent-plaintiff

is complete, the affidavits of the witnesses have also been filed

and the documents have also been exhibited. Thus, it appears that

the petitioner-defendant has filed the present application with a

view to procrastinate the trial of the suit and thus, looking to the

fact that the petitioner was negligent and callous about the right

available to him for sending the promissory note to the finger

handwriting expert for his opinion at the time of filing the written

statement, no case is made out to grant indulgence in the writ

petition while also considering the fact that the evidence of the

respondent-plaintiff is complete, the affidavits of the witnesses is

filed and the documents have been exhibited in the suit below.

(21) In view of the above, the writ petition warrants no

interference and is dismissed being bereft of merit.

(7 of 7) [CW-4009/2019]

(22) The stay application and all pending applications, if any, also

stand dismissed.

(DR. NUPUR BHATI),J

-skm/-

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