IMPORTANT POINT
The court established that the right to present expert evidence must be exercised in a timely manner, and failure to do so can result in the dismissal of such applications, especially when sufficient evidence is already available.

ORDER :

Nupur Bhati, J.

1. This writ petition has been filed under Article 226 and 227 of the Constitution of India assailing the order dated 11.03.2024 (Annexure-9) passed by the Civil Judge Anupgarh in Civil suit no. 33/2017 rejecting the application under Sections 45 and 73 of the Indian evidence Act 1872.

2. Brief facts of the case are that the original plaintiff- Smt Gohdi Devi filed a suit on 10.07.2007 (Annexure-1) for declaration of sale deed dated 2.08.2006 as null and void and for possession of agricultural land before ADJ Anupgarh against original defendant no 1 and defendant No.2 on the grounds that the plaintiff possesses 25 bigha agricultural land in murabba No.37/60 at Chak-2 at District-Anupgarh which was alotted to her as a pong dam oustee. She also stated in the plaint that the said land was given for cultivation to Nakshatra Singh on contract basis in 2006 however the amount against the same was not paid and when the plaintiff asked for the payment it was replied by the defendant No-1 that the land belongs to his wife, petitioner No.2- Paramjit Kaur.

3. Thereafter the plaintiff made inquiry and got to know that a power of attorney dated 23.04.1992 was forged and fabricated in her name and on that basis the defendant No.1 - Nakshatra Singh executed a sale deed in favour of his wife on 02.08.2006.

4. During the pendency of the suit the original plaintiff died and thus the written statement was filed by the legal representatives of the defendant No.1 denying the averments in the plaint and stated that the land was given for cultivation only for the year 1991 and thereafter the original plaintiff entered into an agreement with one Mukhtiar Kaur wife of Hari Singh (mother of petitioner No.1) on 14.02.1991 for selling the said land for a consideration of amount of rupees 2,00,000 and 1,95,000 was given as an advance amount and the power of attorney was executed by Gohdi devi in favour of Nakshatra Singh the petitioner No.1 as it was not possible for her to travel to Rajasthan from Himachal Pradesh. Thereafter on the basis of the Power Of Attorney the sale deed was executed on 01.08.2006 and registered on 02.08.2006. Furthermore an FIR bearing No 423/2007 was also lodged by Gohdi Devi at PS Anupgarh in which Negative Final Report was filed by the police (Annexure-A1).

5. Thereafter original plaintiff died and her legal representatives were taken on record as plaintiffs/respondent No.1/1-1/4. Furthermore the court framed 8 issues (Annexure-2). Thereafter an application under Order VII Rule 11 of CPC was filed by the petitioners wherein on 17.05.2017, ADJ Anupgarh passed an order stating that the suit is not maintainable due to pecuniary jurisdiction and the plaint was directed to be returned to the plaintiffs for filing the same before the competent court and thus the matter was presented before Civil Judge Anupgarh (Junior Division) on 29.05.2017. Furthermore the respondents submitted a list of witnesses on 16.03.2019 (Annexure-3) and the evidence of their witness was recorded, however, a list of 8 witnesses was submitted by the respondents but only the affidavit (Annexure-4) of Joginder Singh i.e. respondent No. 1/1 was filed, who was cross examined by the counsel for the petitioners on 05.04.2019 and 10.04.2019 and thereafter, the case was fixed for recording the evidence of the petitioners.

6. Thereafter the petitioners submitted their list of witnesses (Annexure-5) on 30.11.2018 and 15 names as witnesses were given including Dr Iqbal Ahmed, the finger print expert. Furthermore the evidence of witnesses produced by the petitioners commenced and 9 witnesses DW1 to DW-9 were produced and cross examined (Annexure-6) by the counsel of the respondents. Moreover, an application under Sections 45 and 73 of the Indian Evidence Act 1872 was filed by the petitioners on 07.03.2024 (Annexure-7) wherein it was stated that the case of the respondents-plaintiffs is that the power of attorney dated 23.04.1992 is forged and fabricated