Khaleel Ahmed vs Rehmat Bano

Sandeep Shah, J

The petitioners, by way of the present writ petition, have challenged the order dated 27.09.2021 passed by the learned Civil Judge, Didwana, District Nagaur, whereby the application filed by the respondent under Section 45 of the Evidence Act has been allowed.

Shown of unnecessary details, the facts relevant for adjudication of the present writ petition are as follows: the plaintiff (respondent No.1) filed a suit for declaration and permanent injunction, praying that the gift deed dated 04.04.2014 be declared null and ineffective. It was asserted that Smt. Mafia, mother of the plaintiff, had already gifted the part of the land in question situated at Khasra No.2952 earlier by way of a gift deed dated 18.11.2013, and therefore the said land could not have been gifted again. The defendants filed a written statement to the suit and, while denying the contents of the plaint, stated that earlier, by way of “Bakshish-nama” dated 02.06.1998, Smt. Mafia had already gifted the land in question along with other portions of land in favour of defendant Nos.2 to 4 and the present petitioners. Subsequently, two sisters were impleaded as party respondents who filed their written statements along with a counterclaim, to which a written statement was filed by the plaintiff. Post completion of pleadings, 11 issues were framed by the trial Court.

It was later that an application dated 03.09.2016 came to be filed by Smt. Mafia (mother of the plaintiff and a defendant in the suit), stating therein that she had executed a “Bakshish-nama” way back on 02.06.1998, which was followed by a registered gift deed dated 04.04.2014, whereby the property was distributed among her three sons. She further stated that the plaintiffs have no right over the property in question and thus prayed to the trial Court, to do the needful.

In the meanwhile, in the year 2017, an application dated 11.07.2017 under Section 45 of the Evidence Act came to be filed by the plaintiff, stating that the “Bakshish-nama” dated 02.06.1998, filed by the defendant, was a fraudulent document. It was alleged that the backside of the stamp clearly indicated that the document was originally intended for the execution of a rent note, and further, that the signatures on the document were not those of Smt. Mafia (defendant No.1). It was further emphasized that the ink used on the document was the same as that used on Form No. 3, which had been submitted before the Court for the purpose of producing the documents. It was thus asserted that, in order to determine the age of the ink and the genuineness of the signatures on the document dated 02.06.1998, it was necessary to have the document examined by a handwriting and forensic expert.

The above-mentioned application was dismissed by the learned trial Court vide its order dated 16.11.2017, while observing that since the document was submitted by the defendants and the burden to prove the same lay upon them, there was no requirement to get the document examined by an expert. It was further observed that the plaintiff would have an opportunity to cross-examine the witness, i.e., Smt. Mafia, during the course of her examination with regard to the genuineness and other contents of the document. Without going into the merits of the case, the trial Court concluded that there was no necessity for expert examination to prove the genuineness of the document at that stage for the above mentioned reason.

Subsequently, the evidence of the plaintiff was completed, and the matter was fixed for the defendants' evidence. However, strangely and probably with a view to frustrate the plaintiff’s right to cross-examine the witness, the defendants chose not to appear for evidence, and the defendants' evidence was thereafter closed. At that stage, the plaintiff filed a fresh application under Section 45 of the Indian Evidence Act, submitting that the earlier application had been dismissed on the ground that the plaintiff would have an opportunity to cross-examine Smt. Mafia regarding the genuineness of the document where Smt. Mafia had not appeared for cross examination and therefore the plaintiff’s right to question genuineness of document has been taken away. It was further stated that a counterclaim had also been filed, in which reliance was placed on the document in question. Therefore, since Smt. Mafia had not appeared in the witness box, it became necessary to have the document examined by an expert to determine the genuineness of the document and whether it was fraudulent. Accordingly, the present application was filed.

The learned trial Court, after considering the arguments advanced by both sides, vide its order dated 27.09.2021, allowed the application filed by the plaintiff-respondent. It was clearly observed that since Smt. Mafia had not appeared in the witness box, it became necessary for the plaintiff to prove the genuineness of the document, particularly the signatures allegedly executed on 02.06.1998. This became more pertinent after the plaintiff filed an application under Order XI Rule 14 CPC for summoning the relevant documents and as per plaintiff signatures upon the document dated 02.06.1998 were obtained post filing of the application only. The trial Court further observed that a perusal of Exhibit-1 clearly revealed overwriting and cuttings in the document. Moreover, the ink used in Form No. 3 and the ink used in the document in question (filed along with Form No. 3) appeared to be the same. Therefore, considering the apparent inconsistencies, the document was directed to be sent to the Forensic Science Laboratory, Jodhpur, to verify its genuineness.

Challenging the aforesaid order, the present writ petition has been filed.

Mr. Shubhankar Johri, the learned counsel for the petitioner, submits that once an application under Section 45 filed by the plaintiff-respondent was rejected by way of order dated 16.11.2017, the filing of a subsequent application was not maintainable, and on this ground alone, the impugned order deserves to be quashed and set aside. He has raised a sole ground relating to res judicata while arguing the present writ petition. To buttress his arguments, the counsel has relied upon the judgment of the Hon’ble Apex Court in the case of ‘Thirunagalingam v. Lingeswaran & Anr’, passed in SLP (C) No. 17575 of 2023 (2025 INSC 672), wherein, in paragraph 30, the Hon’ble Apex Court held as under:-

“30. In the present appeal, the Respondents seek to raise the very same reason to condone the delay as were previously canvassed, without placing any fresh or additional material to distinguish the current reason from the one already discussed and dismissed. This Court is of the considered view that such a repetition of grounds already scrutinized and held untenable amounts to an abuse of the process of law. Although the applications for condonation of delay are filed under different provisions of the law but the said provisions provide for concurrent remedies through different mechanisms and if the application filed under one provision has already been dismissed by a court of competent jurisdiction, by applying its judicial mind and held that the reasons for delay were not sufficient, a subsequent application filed under different provision, reiterating the same contentions or grounds of delay, cannot be entertained.”

He has further relied upon the judgment of the Andhra Pradesh High Court in the case of Vemuri Ramesh Babu v. Vemuri Mariyamma, reported in 2021 SCC OnLine AP 3884, wherein, in paragraph 27, the Andhra Pradesh High Court held as under:—

“ 27. In view of the above reading of law I am of the opinion that-a) The principle of res judicata would apply, as set out in Section 11 of C.P.C., even two successive applications in the same suit depending on their categorisation as set out in paragraph-13 of Arjun Singh v. Mohindra Kumar, where there was determination of an issue, on merits in the first application.,b) A second application, after the first application has been dismissed, without reference to the principle of res judicata, would still be barred unless there are fresh facts, which could give rise to second application.”

Per contra, the learned counsel for the respondents, while supporting the impugned order, contended that the principles of res judicata would not apply in the present case as the earlier application was dismissed with a specific observation that the plaintiff would get an opportunity to cross-examine the witness to verify the genuineness of the document. Therefore, it was held that expert opinion was not necessary at that stage. However, since the witness did not appear, the plaintiff had no option but to file a fresh application, as she was denied the opportunity to cross-examine Smt. Mafia, who refused to appear in the witness box because the defendant did not require any evidence in this regard.

It was further argued that considering this aspect alone, along with the inconsistencies in the document, the impugned order was rightly passed. It was also submitted that the principles of res judicata would apply only when no fresh facts have arisen after the earlier order. In the present case, fresh facts have indeed come into existence, as the sole basis of passing of the earlier order was the opportunity to cross-examine Smt. Mafia, however, after the defendant refused to produce any witness for cross examination, the plaintiff had no option but to file the present application. It was further submitted that the learned trial Court has dealt with each and every objection raised and, therefore, the writ petition is devoid of any substance and deserves to be dismissed.

Having considered the arguments of both sides and perused the judgments relied upon by the learned counsel, it is clear that successive applications based on the same facts are barred by law under the doctrine of res judicata, even if they are interlocutory in nature. However, if there is a change in the facts of the case or new facts have arisen, the filing of a subsequent application would not be barred under the doctrine of res judicata. Paragraph 30 of judgment in ‘Thirunagalingam v. Lingeswaran & Anr.’, passed in SLP (C) No. 17575 of 2023 and paragraph 27 of the judgment in ‘Vemuri Ramesh Babu v. Vemuri Mariyamma’, reported in 2021 SCC OnLine AP 3884, clearly reveals that the filing of a fresh application on fresh facts is not barred.

Furthermore, in the case of Arjun Singh v. Mohindra Kumar & Ors. reported in AIR 1964 SC 993, the Hon’ble Apex Court held as under:

“……..But what we are concerned with is slightly different and that is whether the same Court is finally bound by that order at later stages so as to preclude its being reconsidered. Even if the rule of res judicata does not apply it would not follow that on every subsequent day which the suit stands adjourned for further hearing, the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the court does not however necessarily rest on the principle of res judicata. Thus if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts, is not barred on the application of any rule of res judicata, but would be rejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the principle of res Judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the Other case, on proof of fresh facts, the court would be competent, may would be bound to take those into account and make an order conformably to the facts freshly brought before the court.”

Coming to the facts of the case, a perusal of the earlier order dated 16.11.2017 clearly reveals that the sole reason for not allowing the application under Section 45 at that stage was that the plaintiff would get an opportunity to cross-examine the witness, i.e., Smt. Mafia, during cross-examination. At the stage of cross examination of witness Smt. Mafia, questions regarding the genuineness of the documents, signatures, and ink could be addressed to disprove the contents of the documents. However, since Smt. Mafia did not appear in the witness box, the plaintiff had no option but to file the present application to disprove the document, which was already exhibited. Furthermore, a counterclaim was filed by the defendants who also relied upon the document in question. It is thus clear that there were fresh facts and additional material warranting the filing of the subsequent application by the plaintiff to disprove the genuineness of the document in question quo witch the excluded Smt. Mafia has filed the application fortifying the execution of the same and post that in spite of filing of the application, she had not appeared in the witness box for cross-examination. The learned trial Court has thus rightly considered all aspects of the matter and, after noting the apparent inconsistencies in the document, rightly sent it to the Forensic Science Laboratory, Jodhpur, to determine the genuineness of the document. This Court finds no illegality in the order passed by the learned trial Court, and the impugned order is accordingly upheld. The writ petition, being devoid of merit, is dismissed.

All pending applications are also disposed off accordingly.