Allowed

Kailash Chand Sharma v. Addi District Judge and Anr.

Rajasthan HC20 Sept 2014CW/8998/2012

Case brief

AI extract

What is this about?

The High Court held that summoning a privately engaged handwriting expert was improper. The application was allowed to quash the order directing the expert's appearance and the Commercial Taxes Officer's summons, directing the plaintiff to approach the trial court under Section 45 for a forensic examination instead.

What did the court decide?

Order dated 16.05.2012 quashed; Plaintiff allowed to move application under Section 45 Evidence Act; Directive for disposal of suit within eight months of report.

Kailash Chand Sharma Vs Addi District Judge… — Civil Procedure and Limitation | Rajasthan HC (2014)

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S.B. CIVIL WRIT PEITTION NO.8998/2012

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(1)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR

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O R D E R

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S.B. CIVIL WRIT PEITTION NO.8998/2012 (Kailash Chand Sharma Vs. The Additional District Judge No.5, Metropolitan City, Jaipur & Anr.)

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Date of Order : 29.09.2014

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HON'BLE MR. JUSTICE ALOK SHARMA

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Mr. Prahlad Sharma, for the petitioner-defendant. Mr. Satish Khandwal, for the respondent-plaintiff. BY THE COURT

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The petitioner-defendant (hereinafter 'the defendant') is aggrieved of the order dated 16.05.2012, passed by the Additional District Judge No.5, Metropolitan City, Jaipur (hereinafter 'the trial court) whereby the application at the instance of the respondent-plaintiff (hereinafter 'the plaintiff') under Order 16 Rule 6 CPC was allowed and a handwriting expert, Dr. Dinesh Shetty, by whom the plaintiff had purportedly got the disputed promissory note dated 11.09.2005 allegedly executed by the defendant privately examined, summoned to appear before the court as a witness. The trial court also directed that the Commercial Taxes Officer, Circle-F, Jaipur appear before it with the record of the VAT returns of the defendant filed before him for the purpose of matching the signature of the defendant on the promissory note dated 11.09.2005.

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Mr. Prahlad Sharma, appearing for the defendant, has

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S.B. CIVIL WRIT PEITTION NO.8998/2012

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(2)

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submitted that earlier an application under Order 13 Rule 10 CPC filed by the plaintiff had been dismissed by the trial court on 31.05.2011 wherein the court has held that there was no occasion to summon the VAT returns filed by the defendant before the Commercial Taxed Department because the admitted signature of the defendant were available on the written statement as also the 'vakalatnama' authorising his counsel to appear in the suit before the trial court. He submits that the plaintiff was free to move an application under Section 45 of the Evidence Act for having the promissory note dated 11.09.2005 examined by a handwriting expert employed with the Forensic Science Laboratory. It is submitted that in the event the order dated 16.05.2012 passed by the Additional District Judge No.5, Metropolitan City, Jaipur were to be sustained, the defendant would be prejudiced as the plaintiff's professionally engaged handwriting expert would definitely support the plaintiff's case of the promissory note dated 11.09.2005 having been signed by the defendant.

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Mr. Satish Khandelwal, appearing for the plaintiff, has supported the impugned order dated 16.05.2012 passed by the trial court.

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I have heard the counsel for the parties and perused the impugned order dated 16.05.2012.

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In my considered opinion, an application under Order 13 rule 10 CPC having been dismissed vide order dated

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S.B. CIVIL WRIT PEITTION NO.8998/2012

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(3)

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31.05.2011, there was no occasion for the trial court to grant the same relief to the plaintiff under the impugned order dated 16.05.2012. As far as the summoning of the handwriting expert, Dr. Dinesh Shetty, who had examined the disputed promissory note dated 11.09.2005 at the instance of the plaintiff is concerned, it goes without saying that the said witness would not be an independent witness having been professionally previously engaged by the plaintiff. The proper course would have been to have the promissory note sent to the Forensic Science Laboratory on an appropriate application under Section 45 of the Evidence Act for adjudging as to whether the signatures on the promissory note dated 11.09.2005 were that of the defendant or not. It is trite that justice should not only be done, but also seem to be done. And on that principle, the direction of the promissory note dated 11.09.2005 being sent to the Forensic Science Laboratory for opinion of the handwriting expert would be just and appropriate as also in furtherance of justice.

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Consequently, I would allow this petition under Article 227 of the Constitution of India and quash and set aside the order dated 16.05.2012.

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The plaintiff shall be at liberty, if so advised, to move an appropriate application under Section 45 of the Evidence Act before the trial court for having the disputed signatures on promissory note dated 11.09.2005 examined by a handwriting expert with the Forensic Science Laboratory, Shastri Nagar,

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S.B. CIVIL WRIT PEITTION NO.8998/2012

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(4)

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Jaipur. The Director, Forensic Science Laboratory is directed that in the event any request emanates from the District Judge on an appropriate application under Section 45 of the Evidence Act having been made before him, the report with regard to the signatures on the promissory note dated 11.09.2005 shall be submitted to the trial court within a period of two months thereafter.

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The petition stands disposed of accordingly.

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Mr. Satish Khandelwal submits that as the suit is of

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the year 2008 and the plaintiff is over 80 years old, the trial court be directed to dispose of the suit within eight months from the receipt of the report from the Forensic Science Laboratory. The prayer made is fair. It is accordingly directed.

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(ALOK SHARMA), J

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MS/-

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All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.- Manoj Solanki, P.A.

Kailash Chand Sharma v. Addi District Judge and Anr.

Case brief

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Kailash Chand Sharma v. Addi District Judge and Anr.

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