Chhagan Lal vs Bhanwar Lal And Ors

This writ petition has been filed by the petitioner aggrieved against the order dated 23.10.2019 passed by the Civil Judge, Balotra, whereby, the

application filed by the petitioner under Section 45 and 73 of the Evidence Act, has been rejected.

The respondents filed a suit for possession and arrears of rent qua the shop. The suit was based on two documents said to have been executed by the

petitioner. The petitioner filed a written statement denying the existence of documents and the fact that they were signed by the petitioner. It was

alleged that the documents were concocted.

During pendency of the suit, an application under Section 45 and 73 of the Evidence Act was filed, which came to be rejected by order dated

21.5.2019 by the trial court.

Feeling aggrieved, the petitioner filed SBCWP No.11481/2019, which came to be decided by a Coordinate Bench of this Court on 8.8.2019, wherein,

noticing the permission sought by the petitioner to withdraw the writ petition with liberty to move appropriate application under Section 45 of the

Evidence Act for sending the documents in question for opinion of the hand-writing expert / FSL, the permission was granted and the petition was

dismissed as withdrawn.

The petitioner again filed application under Section 45 and 73 of the Evidence Act seeking that the documents in question i.e. agreement dated

26.2.1996 and Tehrir (rgjhj) dated 26.4.1996 be sent to FSL for examining the signatures in question.

The application was contested by the plaintiff.

The trial court by its order impugned dated 23.10.2019 came to the conclusion that earlier also, similar application has been filed, which was rejected

by the trial court and again an identical application has been filed, in which, there was no difference in circumstance and based on the same, rejected

the application.

It is submitted by learned counsel for the petitioner that the trial court was not justified in rejecting the application filed by the petitioner, inasmuch as,

this Court while deciding the writ petition on 8.8.2019 had given liberty to file a fresh application and, therefore, the application was required to be

decided afresh and as such the order impugned deserves to be quashed and set aside.

Further submissions were made that as in the written statement, the petitioner has taken a specific plea that the signatures on the documents in

question were concocted, the same was required to be sent for examination to the FSL and, therefore, rejection of the application cannot be justified.

I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record.

It is not in dispute that in the earlier application filed by the petitioner, which came to be rejected by the trial court on 21.5.2019, the petitioner had

raised similar contentions and the trial court came to the conclusion that looking to the stage of the suit and the fact that the petitioner on his own can

get the document examined and produce report of the hand-writing expert etc., rejected the application.

This Court while deciding the writ petition filed by the petitioner against the rejection of application under Section 45 of the Act, permitted the

petitioner to move a fresh application and further observed that as and when the application is filed, the trial court shall decide the same in accordance

with law. However, apparently the order dated 21.5.2019 passed by the trial court was not set aside.

The trial court by observing that the identical application has been filed regarding which was rejected by its earlier order dated 21.5.2019, rejected the

application. Though apparently the trial court should have dealt with the application independent of the order, which has been passed earlier, merely

because the order has not been set aside by the Court, as the remand of the matter by giving liberty to file a fresh application would be rendered

meaningless.

However, having examined the issue on merits apparently the rejection of the application by the trial court cannot be faulted, inasmuch as, the mere

fact that the petitioner in his written statement has alleged the documents as concocted, cannot be a reason enough for the trial court in each case of

such response to a plaint based on documents to send the documents for examination by Forensic Science Laboratory (FSL).

If on the mere fact of the allegations in the written statement is taken as sufficient for sending the documents to FSL, the same would result in

abdicating the onus on the party alleging the document as concocted to prove the same by way of evidence, the same would shift to the FSL, which

cannot be permitted. In view thereof, the rejection of the application by the trial court, in the circumstances of the case, cannot be faulted.

The trial court has observed twice over that it is always open for the petitioner to produce report of hand-writing expert and lead evidence regarding

the allegations made in the written statement. The said determination made by the trial court is justified in the circumstance of the case.

A grievance has been raised that as the documents are photocopies, the petitioner may be denied copies. In case, the petitioner applies for supply of

the copies of the documents in question, as only photocopies have been filed, and an application filed by the plaintiff under Section 65 of the Act, has

been allowed by the trial court, copies whereof may be supplied to the petitioner.

Consequently, except for the direction pertaining to the copy of the documents, no case for interference is made out in the writ petition. The same is,

therefore, dismissed.