Harbans Singh & Ors. vs Jagir Singh & Ors.

M.M. Kumar, J.—The instant petition filed under Section 115 of the Civil Procedure Code, 1908 (for brevity, ''the Code''), prays for quashing order dated 17.2.1999, dismissing an application filed by the plaintiffpetitioners for examination of an expert Dr. Atul Kumar Singla for comparison of original thumb impression, which are available on the attested certified photocopies, with that of admitted thumb impression.

Fact :

There was one Bhagtu son of Labhu, who was unmarried and had not adopted anyone. His brother Gopal Singh had three sons, namely, Kabal Singh, Puran Singh and Lal Singh. Kabal Singh had two sons, namely, Amrik Singh and Jagir Singh. The following pedigree table as relied upon by the plaintiffpetitioners in the suit and available at page 223 of the record, would make the factual position even more clearer and the same reads as under :

Jagir Singh and Amrik Singh filed a declaratory suit being Civil Suit No. 263 of 1986 against Bhagtu on the basis of a family partition. Although they had no share reflected in the revenue record nor they were in possession of any property in the year 1986 when the suit was filed, yet, with the object of allegedly grabbing the land of Bhagtu the aforementioned suit was filed. Amrik Singh was living abroad at that time and he had colluded with Jagir Singh in obtaining a fake and declaratory decree against Bhagtu, who was about 90 years old, infirm and bedridden and alleged to have never entered the premises of Civil Court at Jalandhar. Someone else impersonating Bhagtu is alleged to have obtained a collusive decree from the Court against Bhagtu. The aforementioned Civil Suit bearing Nos. 263 of 1986 was decreed against Bhagtu and in favour of the defendantrespondent Nos. 1 and 2, (who had filed the suit) on 22.7.1986.

The plaintiffpetitioner Puran Singh (now represented by his Legal Heirs) is son of Gopal Singh as per the pedigree table. He filed Civil Suit No. 213 of 1995, instituted on 28.1.1987/30,10.1995 (which has given birth to the present petition) seeking a declaration to the effect that the judgment and decree of the Civil Court passed in Civil Suit No. 263 of 1986, decided on 22.7.1986 and the consequential mutation dated 9.9.1986, bearing No. 1406 in respect of the suit land, is null and void. It has been claimed that thumb impression of Bhagtu in the impugned decree was forged. A further prayer for permanent injunction restraining the defendantrespondents from taking possession of the suit property forcibly/unlawfully on the basis of the aforementioned decree as a consequential relief has also been made. When the suit had proceeded for rebuttal and arguments, an application by the plaintiffpetitioners, was filed for adducing expert evidence by producing Dr. Atul Kumar Singla, Finger Print Expert. A prayer was made that the thumb impression of Bhagtu on the certified photocopies of the court documents i.e. Power of Attorney of Bhagtu, statement of Bhagtu in the Court and photocopy of the written statement of Bhagtu be permitted to be compared with the thumb impression on the original record, which are allegedly tampered with by smudging the same and also with the Will which has been pleaded in the amended written statement. The application after contest has been rejected by the learned trial Court by passing the impugned order, which reads as under :

"This order of mine shall dispose off an application for summoning the witnesses with record for taking the photographs. It is alleged that the case was transferred to many courts and while pending disposal before Mrs. Archana Puri, the then SubJudge, Jalandhar, the record attached with the main file of case No. 263/86, decided on 22.7.1986 by the court of Sh. Joga Singh, the then SubJudge, Ist Class, Jalandhar titled as Jagir Singh, Amrik Singh v. Bhagtu was tampered in the Court. An application moved by the plaintiff for holding enquiry regarding with the tampering with the documents and enquiry was held giving the verdict the tampering of record. The applicant obtained attested copies before the tampering with the said record, which he wants to be compared (compared ?) by the Expert Sh. Atul Kumar Singla. Reply has been filed by the other side wherein it is alleged that the application is not maintainable and cannot be allowed. In view of the fact that the original thumb impression are not available in the enquiry filed (file ?) and no comparison can be got effected from the disputed signatures. After hearing the both the sides and the perusal of enquiry file against Chaman Lal, only the photostat certified copies have been placed on record, from where the finger print expert wants to take the photograph for comparison, which cannot be allowed being photostat copy. The application is frivolous (frivolous ?) and is hereby dismissed. For rebuttal and arguments, the proceeding are adjourned to 12.3.1999."

When the instant petition came up for hearing before this Court on 5.4.1999 it was admitted and further proceedings were stayed. The petition was to be listed for hearing after completion of service on the defendantrespondents.

Kumari Arvinder Samra, learned Counsel for the petitioners has argued that on 24.12.1998 when the application was filed, it was disclosed in the application that the plaintiffpetitioners wanted to examine Dr. Atul Kumar Singla, Handwriting and Finger Print Expert, Patiala, who was visiting Jalandhar on 7.1.1999. A specific prayer seeking permission of the Court was made for taking photographs of thumb impression of deceased Bhagtu from disputed documents and attested certified copies, which have been filed on the enquiry file to fix the responsibility for tampering of record. The aforementioned application has been placed on record as Annexure P1. Thereafter, the Court has permitted the plaintiff petitioners to deposit an amount of Rs. 50/ as is evident from the perusal of Annexure P3. She has further pointed out that the attested/certified copies of the alleged statement made by Bhagtu in the Court on 22.7.1986 have also been placed on record as Annexure P4. Learned counsel has also pointed out that after issuance of certified copy, the tampered copy of the document is placed on record as Annexure P5, which is also a certified and attested copy. According to the learned Counsel, Dr. Atul Kumar Singla has given opinion in writing on 17.3.1999 showing that with modern photocopying machines a good photocopy is as good as the original document and the expert is to compare the ridges of the thumb impressions with regard to determination of pattern type, configuration of ridges and the ridges details as per the requirements of the case. The expert has further opined that the photocopy of the statement of Bhagtu recorded on 22.7.1986, bearing his thumb impression, is clear enough for comparison and to form an opinion. Therefore, she has maintained that there should be no difficulty for expert to exprees an opinion with regard to the thumb impression of Bhagtu and the view taken by the trial Court is liable to be set aside.

Mr. Puneet Jindal, learned Counsel for the defendantrespondents has argued that it is not possible to express any opinion on a photocopied document with thumb impression as the depths of thumb impression cannot be measured by an expert and, therefore, the expert witness should not be granted permission to examine. Learned counsel has further argued that the opinion expressed by the expert on 17.3.1999 (P6), which is subsequent to the impugned order, was never brought before the Court and, therefore, this Court may direct the trial Court to decide the application of the plaintiffpetitioners afresh. Learned counsel has also raised an objection that the revision petition is not maintainable against an interlocutory order as it does not finally decide the controversy between the parties.

Having heard the learned Counsel for the parties and perusing the record, I am of the considered view that this petition deserves to be allowed and the impugned order dated 17.2.1999 is liable to be set aside. In view of the opinion expressed by Dr. Atul Kumar Singla, it cannot be in a blanket manner stated that the thumb impression on a photocopy document in no case could be examined and no opinion could be formed. The name of the expert was mentioned in the application filed on 24.12.1998 (P1). The Court has also allowed depositing of diet money of Rs. 50/ on 14.1.1999 (P3). The case has a chequered history, inasmuch as, the judgment and decree passed in 1986 is at the centre of controversy. Whether the decree has been obtained by fraud and thumb impression of Bhagtu (who was impleaded as defendant in those proceedings) was forged by impersonating him is a vital issue.

The certified attested copies of the record have been obtained by the plaintiffpetitioners and thereafter the record appears to have been tampered with, which obviously has been done to achieve an oblique motive. Such an attempt has been made during the pendency of the proceedings in the Court by someone to obliterate the original thumb impression and smudging the same with ink etc. The certified attested copy of the document which has thumb impression of Bhagtu on it, is the only copy available before tampering of record.

It is well settled that the science of identifying thumb impression has attained exactitude and it hardly admits of any mistake or doubt. In this regard reliance may be placed on a judgment of the Supreme Court in Jaspal Singh v. State of Punjab, AIR 1979 SC 1708. The best evidence which is available cannot be shut out on the preposterous plea that the depth of the thumb impression on a photocopied document could not be fathomed or that such a petition is not maintainable under Section 115 of the Code. In the peculiar facts and circumstances of the case when serious allegations inspiring some credibility have been made then prayer made by the plaintiffpetitioners cannot be brushed aside on such grounds, especially when the expert has expressed a categorical opinion that comparison on the photocopy has been made possible by modern photocopying machines and a good photocopy is as good as the original. As long as the expert has opined that he can easily compare the ridges of thumb impression to determine the pattern type, configuration of ridges and the details thereof, there is no impediment in the procedural law to obstruct such evidence to come on record. Therefore, in my view, the application filed by the plaintiffpetitioners deserves to be allowed.

In view of the above, this petition succeeds. Order dated 17.2.1999 is hereby set aside. The parties through their counsel are directed to appear before the trial Court on 20.3.2006. The plaintiffpetitioners are entitled to their cost, which is assessed at Rs. 5,000/. The cost shall be paid before the defendantrespondents are heard in defence. The record of the trial Court be immediately sent back. Any observation made in this order shall not be construed as an expression of opinion on.the controversy raised in the suit.