Raju Ram vs Jawahar Lal Vishwakarma

P.K. Balasubramanyan, C.J.—Heard both sides.

The plaintiff in a suit for eviction is the petitioner in this revision petition filed u/s 115 of the Code of Civil Procedure. The suit was presumably filed by the plaintiff, acting through his father, as his power of attorney. In the written statement, the defendant, inter alia, raised a plea that the plaintiff was not behind the suit and the father of the plaintiff had forged the signature of the plaintiff and had instituted the suit.

The suit was posted for evidence, 12 witnesses were examined on behalf of the plaintiff, though the plaintiff himself was not examined. On behalf of the defendant, 13 witnesses were examined. The suit was posted for arguments. At that stage, the defendant apparently changed his counsel. At that stage, an application was made on behalf of the defendant praying that the signature on the vakalatnama and the power of attorney produced in the suit, said to be that of the plaintiff, may be sent to a handwriting expert for examination and his opinion along with the admitted signatures of the plaintiffs. This application was opposed by the plaintiff pointing out that the application has been filed at a belated stage that for after the close of evidence and when the suit is fixed for final arguments. Moreover an examination of the signature on the vakalatnama and the power of attorney was not at all necessary. Taking note of the nature of the plea the trial Court directed that the plaintiff be examined in the suit. It also allowed the application made by the defendant and directed that the signatures of the plaintiff on the vakalatnama and the power of attorney be sent for comparison with the admitted signatures of the plaintiff. The plaintiff has challenged this order of the Court below in this revision.

It appears to me that the trial Court has acted with material irregularity in exercise of its jurisdiction in directing the sending of the vakalatnama and the power of attorney to a handwriting expert for comparison with the admitted signatures of the plaintiff. In the nature of the suit, such an examination is clearly unnecessary. That apart, evidence in the suit has been concluded. Even though the defendant had raised a plea in the written statement, regarding the propriety of the filing of the plaint the defendant did not pursue that plea until the filing of the present application, after the suit was posted for arguments. That apart, the Court below has thought it proper to direct the plaintiff to be examined in the suit. That obviously is more than sufficient to clear any doubt that may be there in the mind of the Court. After all, the plaintiff may be able even to own up the plaint. In my view, it is neither necessary nor expedient in the circumstances of the case to allow the belated application made by the defendant.

In the view that the Court below has acted with material irregularity in exercise of its jurisdiction in allowing the application made by the defendant at a belated stage, I am satisfied that the order requires to be interfered with. I am also satisfied that the examination of the plaintiff in the suit as ordered by the trial Court will meet the ends of justice.

In the circumstance, I allow this revision petition and while confirming that part of the order of the trial Court directing the plaintiff to be examined in the suit, I set aside the order in so far as it allowed the application filed on behalf of the defendant dated 15.3.2002 in Eviction Suit No. 23 of 1991 and dismiss that application. I make no order as to costs.