Rajasthan High Court - Jodhpur

Khinya Ram vs Kewal Ram (2023:Rj-Jd:27607) on 2 September, 2023

Bench: Nupur Bhati

[2023:RJ-JD:27607]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10614/2019

Khinya Ram S/o Shri Deepa Ram Saaran, Aged About 64 Years, Resident Of Village Pal, Tehsil And District Jodhpur.

----Petitioner Versus

1. Kewal Ram S/o Bhagchand, Resident Of Jodhpur, At Present Residing At Mansagar, Shivpuri, Mahamandir, Jodhpur.

2. Ram Prakash Malpani S/o Shri Ram Prasad Malpani, Resident Of Jodhpur, At Present Residing At Mansagar, Shivpuri, Mahamandir, Jodhpur.

3. Rinchor Ram S/o Deepa Ram Saran (deceased), Through His Legal Representatives-

3/1. Mohan Ram S/o Late Shri Rinchor Ram, Resident Of Village Pal, Tehsil And District Jodhpur.

3/2. Pukhraj S/o Late Shri Rinchor Ram, Resident Of Village Pal, Tehsil And District Jodhpur.

3/3. Smt. Kiran W/o Shri Thana Ram D/o Late Shri Rinchor Ram, Resident Of Village Pal, Tehsil And District Jodhpur.

----Respondents

For Petitioner(s) : Mr. Muktesh Maheshwari Mr. Gaurav Chaudhary

HON'BLE DR. JUSTICE NUPUR BHATI

Order

02/09/2023

1. The present writ petition has been filed with the following

prayer:-

(i) By an appropriate writ, order or direction, the impugned Order dated 14.03.2019 (Annex.10) passed by the learned Additional District Judge No.6, Jodhpur Metropolitan in Civil Original Suit No.53/2012 - Kewal

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Ram Vs. Khinya Ram may kindly be declared illegal and be quashed and set aside.

(ii) By an appropriate writ, order or directions, the application dated 20.04.2018 (Annex.8) submitted by the petitioner under Section 45 of the Indian Evidence Act seeking expert opinion in the matter may kindly be allowed in toto and the documents Ex.-1 Receipt dated 23.09.2002 (Annex.2) may kindly be directed to be sent for report of handwriting expert as per law.

(iii) Any other appropriate order or direction which this Hon'ble Court may deem fit just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.

(iv) Costs of the writ petition may kindly be awarded to the petitioner.

2. Brief facts of the case are that the plaintiffs-respondents filed

a Civil Original Suit for specific performance of contract and

perpetual injunction on 23.09.2005 and thereafter an amended

plaint was filed on 17.01.2011 which was registered as Case

No.53/2012 before the Additional District Judge No.6, Jodhpur

Metropolitan (for short, the learned Court below). The plaintiff

submitted receipt dated 23.09.2002 before the learned Court

below alongwith the plaint based on which, the suit for specific

performance of contract and perpetual injunction was submitted

by the plaintiffs-respondents. The plaintiffs-respondents served a

legal notice upon the petitioner-defendant No.1 on 11.12.2003

with an assertion that a receipt was executed in favour of the

plaintiffs-respondents and demand was made to receive the rest

of the consideration and for execution of the agreement to sale in

favour of the plaintiffs-respondents. The petitioner-defendant No.1

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submitted a reply to the legal notice on 26.12.2003. The plaintiffs-

respondents served another another notice upon the petitioner-

defendant on 14.09.2005 to which the petitioner submitted reply.

Thereafter, the petitioner-defendant No.1 filed written statement

to the plaint before the learned Court below on 03.01.2006.

3. The petitioner thereafter moved an application under Section

45 of the Indian Evidence Act on 20.04.2018 before the learned

Court below with a plea that a bare perusal of the notice dated

11.12.2003, it is clear that no agreement was executed between

the parties and since there was overwriting in the receipt in

dispute and the same was forged at the various places and thus,

the opinion of the expert was required in the matter.

4. The plaintiffs-respondents No.1 and 2 submitted reply to the

said application on 10.05.2018 denying the averments made in

the application.

5. The learned Court below after hearing the arguments of both

the parties, dismissed the application submitted by the petitioner

vide order dated 14.03.2019 (Annex.-10). Being aggrieved of the

same, the writ petition has been preferred by the petitioner.

6. Learned counsel for the petitioner submits that it is clear

from the bare look at the receipt dated 23.09.2002 that there

appears overwriting as well as the said receipt is forged and thus,

the same requires an expert opinion in order to ascertain the

veracity of the document. Hence, the petitioner's application dated

20.04.2018 has been wrongly rejected by the Court below.

7. Learned counsel for the petitioner further submits that the

delay of 12 years in filing the application cannot be attributed to

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the petitioner as the amended plaint was filed on 17.01.2011 and

thus, the delay in filing the application under Section 45 of the

Evidence Act, 1872 ought to be condoned.

8. Learned counsel also submits that the evidence of the plaint

is yet not over and thus, the application filed by the petitioner

under Section 45 of the Evidence Act would not cause any delay in

deciding the suit below.

9. Learned counsel further submits that since the basis of the

plaint is resting upon the receipt dated 23.09.2002, therefore, the

same is required to be examined by an expert and taking his

opinion whether the document submitted is having proper veracity

or not. Learned counsel for the petitioner placed reliance upon the

judgment dated 18.12.2005 passed by Andhra Pradesh High Court

in Civil Revision Petition Nos.1500 of 2010 in the case of Bande

Siva Shankra Srinivasa Vs. Ravi Surya Prakash Babu & Ors. (AIR

2016 AP 118) and the relevant portion is reproduced as under:-

"We accordingly answer the reference as under: It is essentially within the judicious discretion of the Court, depending on the individual facts and circumstances of the case before it, to seek or not to seek expert opinion as to the comparison of the disputed handwriting/signature with the admitted handwriting/ signature under Section 45 of the Indian Evidence Act, 1872. The Court is however not barred from sending the disputed handwriting/ signature for comparison to an expert merely because the time gap between the admitted handwriting/signature and the disputed handwriting/signature is long. The Court must however endeavour to impress upon the petitioning party that comparison of disputed handwritings/signatures with

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admitted handwritings/signatures, separated by a time lag of 2 to 3 years, would be desirable so as to facilitate expert comparison in accordance with satisfactory standards. That being said, there can be no hard and fast rule about this aspect and it would ultimately be for the expert concerned to voice his conclusion as to whether the disputed handwriting/ signature and the admitted handwriting/signature are capable of comparison for a viable expert opinion. The view expressed by the Division Bench in JANACHAITANYA HOUSING LIMITED V/S. DIVYA FINANCIERSI, as to the stage of the proceedings when an application can be moved by a party under Section 45 of the Indian Evidence Act, 1872, continues to hold the field and there is no necessity for this Full Bench to address that issue."

10. Heard learned counsel for the petitioner and perused the

material available on record.

11. This Court find that there was no sufficient and reasonable

pleading made by the petitioner in the writ petition or before the

Court below to meet out the delay of 12 years in filing the

application under Section 45 of the Indian Evidence Act, 1872, on

20.04.2018. Thus, it is an admitted fact that the plaintiffs-

respondents had filed the receipt in question on 23.09.2002

alongwith the plaint which came to the knowledge of the petitioner

as soon as the copy of the plaint was served upon them. The

petitioner-defendant No.1 had filed the written statement to the

plaint way-back on 03.01.2006 and at that time it was open for