Netlal vs Saligram and Others

U.C. Maheshwari, J.—The counsel of the private parties submits that the presence of respondent no. 12 is not required for adjudication of this petition, the same can be adjudicated effectively only in the presence of the petitioner and respondents no. 1 to 11, 13 and 14. Consequently, the notice of this petition, against respondent no. 12, if the same has not served, is hereby dispensed with. In the available circumstances, with the consent of the parties, this petition is heard finally.

The petitioner/plaintiff has filed this petition under Article 227 of the Constitution of India, for quashment of the order dated 19.03.10 (Annexure P-3), passed by Vth Civil Judge Class-II, Balaghat, in Civil Original Suit No. 50-A/2009, dismissing his application filed u/s 45 of Indian Evidence Act, to get examine the alleged thumb impressions of the seller on the disputed both the sale deeds dated 09.05.1980. As alleged by the respondents, the same were executed by the present petitioner/plaintiff in favour of Bhursi Bai and Bhagwati Bai.

The petitioner''s counsel after taking me through the petition as well as the papers placed on record, submits that the petitioner had neither entered in any transaction of sale with Bhursi Bai and Bhagwati Bai nor sold the property by executing the aforesaid sale deeds with his thumb impression. He further said that the impugned suit has been filed by him for declaring the aforesaid both the sale deeds to be ab-initio void, contending that aforesaid both the sale deeds were made and got registered with the forged thumb impression of some other person in the name of petitioner with respect of his property. In such premises, the petitioner/plaintiff wants to get examined the thumb impressions of both the sale deeds with his actual, genuine and natural thumb impression and prayed to permit the petitioner by allowing his application to get examined the thumb impressions of the sale deeds with his genuine thumb impression by allowing this petition.

On the other hand, counsel of private respondents submits that the petitioner/plaintiff could prove his case by examining himself and the witnesses and in such premises, the examination of thumb impression of the sale deeds with his actual, natural and genuine thumb impression is not necessary. In such premises, by justifying the impugned order prayed for dismissal of this petition.

Having heard, keeping in view the arguments advanced, after going through the papers placed on the record along with the impugned order, I am of the considered view that to adjudicate the aforesaid disputed question with respect of thumb impressions of the petitioner/plaintiff on the alleged disputed sale deed, the assistance of handwriting expert appears to be necessary. Apart this, the parties of the case have a right to adduce the relevant evidence including the evidence of expert in support of their respective case and the petitioner/plaintiff has filed the impugned application bonafidely at the initial stage of the case before recording his evidence. In this situation the trial court ought to have allowed the impugned application but the same has been wrongly dismissed. Thus it is held that the trial court has committed grave error in dismissing the application of the petitioner.

In view of the aforesaid discussion by allowing this petition, the impugned order dated 19.03.10 (Annexure P-3), till the extent of dismissing the aforesaid application is set aside. Pursuant to it such application is allowed and the petitioner is permitted to get examine the thumb impressions of said sale deeds with his genuine and actual thumb impression by handwriting expert. In such premises, the petitioner is extended the liberty to file appropriate application in this regard in the trial court by stating the name of handwriting expert and subject to order of such court on such application petitioner/plaintiff may call the handwriting expert before the court to collect the requisite Informations and document along with ''the actual, genuine and natural thumb impression of the petitioner/plaintiff to compare with the alleged thumb impression of the petitioner/plaintiff on the disputed documents for giving the expert report in that respect.

Simultaneously, the respondent/defendant is also extended a liberty to get examine the same from the handwriting expert of his choice in rebuttal. Pursuant to it, it is also observed that the parties shall be at liberty to examine such handwriting experts in support of their respective cases at the trial.

The revision petition is allowed as indicated above. Considering the oral submission of the petitioner''s counsel, it is directed that in compliance of some earlier order, if petitioner has deposited Rs. 1,000/- with the trial court then subject to proper verification, the same be refunded to him.