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2023 Supreme(Raj) 192
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
PUSHPENDRA SINGH BHATI, J.
Meeni Devi, D/o. Jassaram, W/o. Khartaram - Petitioner
Versus
Ghewar Chand, S/o. Bhikha Ram and Anr. – Respondents
S.B. Civil Writ Petition No. 16306 Of 2019
Decided On : 10-04-2023
For the Petitioner: Mr. Jitendra Chopra.
For the Respondents: Mr. Kailash Chandra Pitawat.
Point of Law: As per Order 18 Rule 3-A CPC, “Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined.
Headnote:
Constitution of India, 1950 - Article 226 - Indian Evidence Act, 1872 - Section 45 – Code of civil Procedure, 1908 - Section 151, Order 18 Rule 3-A - Cancellation of gift deed - Declaration of relinquishment deed as null and void - Prayed that Writ Petition may kindly be allowed and impugned order of Additional District Judge may kindly be declared illegal and same may be quashed and set aside – Affidavit of son (power of attorney) of petitioner had been already ordered to be kept in part ‘D’ – Para 11.
Finding of the Court :
Direction was given to present a list of witnesses within time prescribed under law; in compliance of order, respondent (defendant) submitted a list of witnesses, but petitioner (plaintiff) has not furnished such a list of witnesses before learned Court below - Thus, same clearly makes bona fides of petitioner (plaintiff) doubtful, in given factual matrix - Court further finds that affidavit of son (power of attorney) of petitioner had been already ordered to be kept in part ‘D’ by learned Court below - Court finds that learned Court below has passed a well reasoned speaking order, which does not call for any interference by this Court.
Result: Petition dismissed.
JUDGMENT :
1. This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs:
“(i) It is, therefore, most humbly prayed that this Writ Petition may kindly be allowed and the impugned order dated 13.09.2019 (Annex.1) of the Additional District Judge, Sojat – Pali may kindly be declared illegal and the same may be quashed and set aside.
(ii) Any other order or direction that may be deemed fit, just and proper may kindly be issued in favour of the petitioners.
(iii) Costs may kindly be also awarded.”
2. Brief facts of the case, as placed before this Court by learned counsel for the petitioner, are that the present petitioner (plaintiff) had insituted a suit for declaration of relinquishment deed dated 27.07.1999 (registered on 17.01.2000) as null and void, as well as cancellation of gift deed dated 09.05.2016; along therewith, an application seeking permanent injunction application was also moved by the petitioner (plaintiff).
2.1. The learned Court below framed eight issues, including relief, and proceeded with the trial in the said suit. Thereafter, on 28.11.2018 during the examination-in-chief, Bhanu Singh (son of the petitioner) was presented as power of attorney holder on behalf of the petitioner (plaintiff) and stated that due to old age and disability certificate of 100% blindness, the petitioner was not competent to lead evidence.
2.2. Subsequently, the petitioner (plaintiff) filed an application under Section 45 of the Indian Evidence Act, 1872 and stated that the thumb impression on relinquishment deed dated 27.07.1999 (registered on 17.01.2000) were not of the petitioner (plaintiff).
2.3. However, the learned Court below, after hearing the parties, dismissed the said application filed by the petitioner (plaintiff) vide the impugned order dated 13.09.2019. Thus, aggrieved by the said order, the present petition has been preferred claiming the afore-quoted reliefs.
3. Learned counsel for the petitioner (plaintiff) submitted that in the original suit instituted by the petitioner, she had specifically stated that she never gave thumb impression on the relinquishment deed, and therefore, the expert opinion under Section 45 of the Indian Evidence Act is necessary for effective and fair adjudication of the suit.
3.1. Learned counsel further submitted that the petitioner (plaintiff), as per the certificate issued by the competent authority, suffered blindness disability to the extent of 100%, which is sufficient to call for the expert opinion regarding thumb impression in question; also in the interest of justice and to resolve the dispute between parties, the same is required to be called.
3.2 In support of his submissions, learned counsel relied upon the judgment rendered by the Hon’ble Apex Court in the case of Ramesh Chandra Agrawal Vs Regency Hospital Ltd. & Ors. (Civil Appeal No. 5991 of 2002 decided on 11.09.2009). He further relied upon the judgments rendered by Coordinate Benches of this Hon’ble Court at Jaipur Bench, in the case of Mohru (since deceased) through L.Rs & Ors. Vs. Additional Civil Judge (J.D.) No.1, Jaipur District, Jaipur & Ors. (S.B. Civil Writ No. 2 of 2011 decided on 04.10.2018) and Pratap Singh & Ors. Vs Zammi & Ors. (S.B. Civil Writ Petition No. 15255/2009 decided on 04.01.2011). He also relied upon the judgments rendered by the Hon’ble High Court of Andhra Pradesh in the case of Valludasu Alivelu Vs. Moguthula Yadaiah & Anr. (C.R.P. No. 156 of 2010 decided on 31.05.2010) and Chityalgundameede Ramalakshmamma Vs Ediga Rangamma & Ors (Civil Revision Petition No. 28 of 2012 decided on 27.09.2012), and the judgment rendered by the Hon’ble High Court of Allahabad in the case of Bechan Vs. Deputy Director of Consolidation, Gorakhpur & Anr. (Writ-B No. 54182 of 2016 decided on 21.11.2016).
4. On the other hand, learned counsel appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioner, submitted tha
