Dr. Prasidha Sharma vs Ramakant Sharma And Others

Hirdesh, J

This petition under Article 227 of the Constitution of India has been filed by the petitioner/plaintiff, being aggrieved by the order dated 21.09.2023 passed by the First Civil Judge, Junior Division, Gwalior (M.P.) in Regular Civil Suit No. 899-A/2022, whereby the Trial Court rejected the application filed by the petitioner under Section 45 of the Indian Evidence Act for obtaining expert opinion regarding the signatures of the executor of the disputed documents.

Briefly, the petitioner/plaintiff filed a civil suit for declaration, injunction, and possession in respect of a house purchased by his grandmother, Smt. Krishna Devi, vide sale deed dated 14.07.1987, claiming title on the basis of a registered Will dated 07.01.2002. The respondents denied the Will and claimed ownership on the basis of a Hibbanama dated 14.02.1988. During pendency of the suit, the petitioner’s application under Section 45 of the Indian Evidence Act for examination of disputed signatures by a handwriting expert was rejected by the Trial Court, giving rise to the present petition.

Being aggrieved by the impugned order, the petitioner has filed the present petition contending that the order is illegal, arbitrary, and contrary to settled principles of law. It is submitted that since the defendants have denied the registered Will dated 07.01.2002 and relied upon an unregistered Hibbanama for the same property, the burden lies upon the plaintiff to prove the registered Will, and denial of permission to lead expert evidence under Section 45 of the Evidence Act deprives him of his valuable right to prove his case, resulting in denial of fair trial. Reliance has been placed on the judgments reported in 2012(2) MPHT 19, Komal Singh & Others Vs. Sembai & Others, 2011(4) MPHT 470, and Asharam & Others Vs. Suraj Singh Baghel, 2011(1) MPHT 174 (D.B.). It is further submitted that examination of signatures/thumb impressions by a handwriting expert is a scientific process and, as the evidence has not yet commenced, no prejudice would be caused to the defendants if the application is allowed.

On the other hand, learned counsel for the respondents opposed the Miscellaneous Petition and prayed for its dismissal, supporting the impugned order passed by the Trial Court.

Heard learned counsel for the petitioner and perused the documents available on record.

On perusal of the impugned order and the documents available on record, it is found that the Trial Court has rejected the application only on the ground that this is not the stage to file an application under Section 45 of the Indian Evidence Act. Thus, it is clear that the Trial Court has not totally rejected the application, but has only observed that at this stage the application is not maintainable.

In the considered opinion of this Court, the Trial Court has not committed any error in passing the impugned order in rejecting the said application. Therefore, no interference by this Court is called for in this regard.

Accordingly, the misc. petition is dismissed. However, the petitioner shall be at liberty to file an application under Section 45 of the Indian Evidence Act as and when such stage or situation arises.