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2024 Supreme(P&H) 748
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ALKA SARIN, J.
Rakesh Kumar – Petitioner
Versus
Indrawati – Respondent
CR NO.6899 of 2023
Decided On : 09-04-2024
Mr. Amit Jain, Advocate; For the Petitioner
Mr. S.S. Khurana, Advocate; For the Respondent
The court held that the presence of admitted signatures necessitates allowing a handwriting expert's examination, and costs imposed must be paid for further prosecution of the case.
Headnote:(A) Code of Civil Procedure, 1908 - Section 35B - Application for handwriting expert to take photographs of cheque dismissed by Trial Court - Defendant-petitioner contended that evidence was wrongly closed and that he should be allowed to conclude his evidence - Court found that there were admitted signatures available for comparison and set aside the Trial Court's order. (Paras 6, 7, 8)
(B) Costs - Imposition of costs under Section 35B CPC as a condition precedent for further prosecution of the case - Court noted that reasoning for costs was not recorded by the Trial Court. (Paras 4, 6, 9)
Facts of the case:
The plaintiff-respondent filed a suit for recovery of Rs. 12,50,800/- alleging forgery of a cheque, while the defendant-petitioner claimed it was a blank cheque handed over as security. The defendant sought to allow a handwriting expert to examine the cheque, which was dismissed by the Trial Court.
Findings of Court:
The Trial Court's dismissal of the application was not sustainable as there were admitted signatures available for comparison. The defendant-petitioner was granted two effective opportunities to conclude his evidence upon payment of costs.
Issues: The main issues were whether the Trial Court erred in dismissing the application for a handwriting expert and whether the imposition of costs was justified as a condition precedent for further prosecution.
Ratio Decidendi: The court ruled that the Trial Court's order was erroneous as there were admitted signatures available for comparison, and the imposition of costs without recorded reasoning was improper.
Result: Application allowed; two effective opportunities granted to the defendant-petitioner.
JUDGMENT
Alka Sarin, J. (Oral)
Challenge in the present revision petition is to the impugned order dated 08.09.2023 whereby the application filed by the defendant-petitioner for allowing the handwriting expert to take photographs of cheque (Ex.P7) has been dismissed as also his evidence has been closed by order.
2. The brief facts relevant to the present lis are that the plaintiff-respondent filed a suit for recovery of Rs. 12,50,800/-. In para 3 of the written statement it was specifically stated that a blank cheque had been handed over by the defendant-petitioner to the plaintiff-respondent towards security of Rs. 5,00,000/- and no other details were filled in apart from the signatures of the defendant-petitioner herein. It was further averred that the plaintiff-respondent has forged the cheque by filling in the same. While leading his evidence, an application was filed by the defendant-petitioner for permitting the handwriting expert to take photographs of the cheque in order to give a report regarding the alleged forgery. The said application was dismissed vide the impugned order dated 08.09.2023. Hence, the present revision petition.
3. Learned counsel for the defendant-petitioner would contend that the Trial Court has dismissed the application holding that no such opinion was required as there was no admitted handwriting sample on the case file to compare and moreover the difference could be observed by the Court. It is further the contention that the evidence has wrongly been closed and that given two effective opportunities the defendant-petitioner would conclude his evidence.
4. Per contra learned counsel for the plaintiff-respondent has contended that there are no admitted signatures in the present case and further despite numerous opportunities the defendant-petitioner failed to conclude his evidence and even the costs were not paid and that as per section 35B CPC once the costs are imposed it is a condition precedent for further prosecution of the case.
5. Heard.
6. The argument of learned counsel for the plaintiff-respondent is that once the costs are imposed under section 35B CPC it would be a condition precedent for further prosecution of the case. A perusal of section 35B CPC reveals that in case the costs are not paid the same is to be included in the decree passed section 35B CPC also states that the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date on which the adjournment is sought. In the present case there is no such reasoning which has been recorded. In any case as per section 35(2) CPC the said costs if not paid can be included in the decree which has been passed.
7. In the present case, at the time of leading evidence an application was filed by the defendant-petitioner for permission to handwriting expert to take photographs of the cheque which is alleged to be forged and fabricated in the written statement. The Trial Court has erroneously held that there are no admitted signatures. There are signatures on the file i.e. on the Court file itself i.e. the signatures of the plaintiff-respondent on the plaint as well as his affidavit and on the written statement of the defendant-petitioner as well as his affidavit. In any case, it is the evidence of the defendant-petitioner which has to be led and the Court has not been requested to send the said document for FSL examination that the admitted signatures were required for comparison. The plaintiff-respondent would have her opportunity to rebut the said evidence.
8. In view of the above, the first part of the order passed by the Trial Court is not sustainable in law and is accordingly set aside. The application stands allowed accordingly.
9. The defendant-petitioner has made a statement that he is willing to compensate the plaint
