Avtar Singh vs Mohan Singh and Another

L.N. Mittal, J.—Avtar Singh defendant no. 3, who is also one of the legal representatives of his father Lachhman Singh defendant no. 1 since deceased, has filed this revision petition under Article 227 of the Constitution of India impugning order dated 30.4.2012 Annexure P/3 passed by learned trial court thereby dismissing application dated 12.2.2012 Annexure R1 filed by defendant no. 1 through legal representatives. Respondent no. 1-plaintiff has filed suit for recovery of money against petitioner, his father Lachhman Singh and uncle Khushwinder Singh proforma respondent no. 2. Plaintiff examined his Accountant Bhajan Lal as PW 1. In cross-examination, Bhajan Lal was confronted with some documents said to be account statements issued by Bhajan Lal to Lachhman Singh defendant no. 1. Bhajan Lal did not admit or deny the same. Thereupon defendant no. 1 filed application dated 1.10.2007 (Annexure P/1) seeking direction to Bhajan Lal to give specimen writing for the purpose of comparing the same with aforesaid account statements. However, at that stage, when evidence of plaintiff was being recorded, the said application was not pressed with liberty to press it at the stage of defendants'' evidence. However, it was not pressed at the time of defendants'' evidence. After the defendants'' evidence was concluded, application Annexure R/1 was moved seeking direction to Bhajan Lal to give specimen writing and seeking permission to re-examine Handwriting Expert already examined as DW 2. The said application was opposed by plaintiff by filing reply Annexure R/2.

Learned trial court vide impugned order Annexure P/3 has dismissed the said application. Feeling aggrieved, the instant revision petition has been filed to assail the said order.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioner contended that inadvertently the defendants could not press application Annexure P/1 at the stage of their evidence and therefore, now permission should be granted to take specimen handwriting of Bhajan Lal PW 1 and to re-examine the Handwriting Expert already examined as DW 2. The contention has been opposed by learned counsel for respondent no. 1.

I have carefully considered the matter. Counsel for the parties have stated that the suit was filed in the year 2005. Counsel for the parties are not aware as to when evidence of the plaintiff was closed so that soon thereafter, the defendants could and should have made prayer for specimen handwriting of Bhajan Lal PW 1. However, the petitioner had also moved application dated 18.10.2010 Annexure R3 in the trial court for permission to take photographs of account statements produced by the plaintiff for comparing the same with the disputed account statements produced by the defendants and for leading evidence in this regard. It means that evidence of the plaintiff had been concluded prior to it. Consequently, if the defendants needed specimen writing of Bhajan Lal for comparison, the said prayer should have been made at that stage. The version of the defendants regarding the said requirement was within their knowledge when they moved application Annexure R3 because the said application was also signed by the Handwriting Expert to be examined by the defendants and photographs were sought to be taken for comparison by the Handwriting Expert. However, at that stage, defendants did not make any prayer for taking specimen handwriting of Bhajan Lal PW 1. Consequently, at the belated stage after conclusion of their evidence, their prayer for taking specimen handwriting of Bhajan Lal and for re-examination of Handwriting Expert has been rightly declined by the trial court. As noticed hereinbefore, the suit is of the year 2005 i.e. 8 years old. The defendants have already delayed the same by moving various applications. The plaintiff cannot be made to suffer for the faults of the defendants. For the reasons aforesaid, I find no perversity, illegality or jurisdictional error in the impugned order of the trial court so as to call for interference at the hands of this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is bereft of any merit and is accordingly dismissed.