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2011 Supreme(MP) 507
2012(1) JLJ 411
A.K. Shrivastava, J.
Kawal Singh v. Sembai
Second Appeal No.1443 of 2010 (Jabalpur); Decided on 15.7.2011.
Sanjay Patel for appellants;
Ashok Mishra for respondent No.1;
N.K. Agrawal, Government Advocate for respondent No.2/State.
Headnote:(1) Evidence Act, 1872 -- S.45 -- right of parties under -- thumb impression on consent applications (Exhibits D-4 and D-5) denied by plaintiff -- to get those documents examined by handwriting expert -- applications filed before Courts below -- application should be allowed -- parties should not be debarred from adducing material evidence -- Courts below committed error of law in dismissing the application -- application allowed and case remanded to trial Court.
Held : Learned two Courts below erred in substantial error of law in dismissing the application of defendants under section 45 of the Evidence Act to get the documents Exhibits D-4 and D-5 examined by handwriting expert.
Hence, I am of the view that in arbitrary manner the aforesaid application of the defendants has been rejected resulting into prejudice to them as they have been debarred from adducing material evidence in order to demonstrate that these two documents (Exhibits D-4 and D-5) contained the thumb impression of the plaintiff.
Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree is set aside and case is sent back to learned trial Court to provide opportunity to the defendants to get the documents (Exhibits D-4 and D-5) examined by handwriting expert in order to ascertain whether it bears the thumb impression of plaintiff-Sembai or not.
(2) Evidence Act, 1872 -- Ss.47 and 67 -- mode to prove document -- no particular mode prescribed by the Legislature -- but document can be proved in any one or more modes -- like calling a person who signed or wrote, by calling person in whose presence signed or written and by calling handwriting expert etc. 1983 JLJ 474 and 1981 JLJ 388 relied on. [Para 14
(3) Civil P.C., 1908 -- Ss.100 and 107 -- scope of powers under -- appellate Courts have same powers as Courts of original jurisdiction in respect of suits -- appeal either first or second -- is continuation of suit -- exercising jurisdiction under section 100 -- legality and propriety of any order of trial Court can be examined. [Para 17
¼1½ lk{; vf/kfu;e] 1872 && /kkjk 45 && mica/k ds v/khu i{kdkjksa ds vf/kdkj && oknh }kjk lgefr vkosnuksa ¼izn‘kZ Mh&4 rFkk Mh&5½ ij vaxq"B fpà ls bUdkj fd;k x;k && mu nLrkostksa dk gLrys[k fo‘ks"kK ls ijh{k.k djk, tkus ds fy, && fupys U;k;ky;ksa ds le{k vkosnu izLrqr fd, x, && vkosnu eatwj fd;k tkuk pkfg, && i{kdkjksa dks lkjoku~ lk{; izLrqr djus ls fooftZr ugha fd;k tkuk pkfg, && fupys U;k;ky; us vkosnu [kkfjt djus esa fof/k dh =qfV dh gS && vkosnu eatwj fd;k x;k rFkk izdj.k fopkj.k U;k;ky; dks izfrizsf"krA
vfHkfu/kkZfjr % fo}ku nksuksa fupys U;k;ky;ksa us lk{; vf/kfu;e dh /kkjk 45 ds v/khu izn‘kZ Mh&4 rFkk Mh&5 dk gLrys[k fo‘ks"kK ls ijh{k.k djk, tkus ds fy, vkosnu dks [kkfjt djus esa fof/k dh lkjoku~ =qfV dh gSA
blfy,] esjs n`f"Vdks.k esa izfroknh dk vkosnu euekuh jhfr ls [kkfjt fd;k x;k gS ifj.kkeLo:i mu ij izfrdwy izHkko iM+k gS D;ksafd os ;g izekf.kr djus ds fy, fd bu nksuksa nLrkostksa ¼izn‘kZ Mh&4 rFkk Mh&5½ ij oknh dk vaxq"B fpà gS bl fo"k; esa lkjoku~ lk{; izLrqr djus ls fooftZr gks x, gSaA
¼iSjk 16
ifj.kker%] ;g vihy lQy gS rFkk ,rn~}kjk eatwj dh tkrh gSA vk{ksfir fu.kZ; rFkk fMØh vikLr dh tkrh gS rFkk izdj.k fopkj.k U;k;ky; dks okil Hkstk tkrk gS fd izfroknh dks nLrkostksa ¼izn‘kZ Mh&4 rFkk Mh&5½ dk gLrys[k fo‘ks"kK ls ijh{k.k djk, tkus dk volj iznku fd;k tk, ftlls mfpr vfHkfu‘p; fd;k tk lds fd oknh lseckbZ dk vaxq"B fpà gS ;k ughaA
¼2½ lk{; vf/kfu;e] 1872 && /kkjk 47 rFkk 67 && nLrkost lkfcr djus dh jhfr && fo/kku eaMy }kjk dksbZ fof‘k"V jhfr fofgr ugha && fdarq nLrkost fdlh ,d vFkok vf/kd jhfr;ksa ls lkfcr fd;k tk ldrk gS && tSls O;fDr dks cqykdj ftlus gLrk{kj fd, Fks ;k fy[kk Fkk] O;fDr dks cqykdj ftldh mifLFkfr esa gLrk{kj fd, Fks ;k fy[kk Fkk rFkk gLrys[k fo‘ks"kK dks cqykdj vkfnA 1983 ts ,y ts 474 rFkk 1981 ts ,y ts 388 voyafcrA ¼iSjk 14
¼3½ flfoy izfØ;k lafgrk] 1908 && /kkjk 100 rFkk 107 && ‘kfDr;ksa dh O;kfIr && vihy U;k;ky;ksa dks ogh ‘kfDr;k¡ gSa tks oknksa ds laca/k esa ewy vf/kdkfjrk ds U;k;ky;ksa dh gS && vihy ;k rks izFke vFkok f}rh; && okn dh fujarjrk esa gS && /kkjk 100 ds v/khu vf/kdkfjrk dk iz;ksx djuk && fopkj.k U;k;ky; ds fdlh Hkh vkns‘k dh oS/krk rFkk vkSfpR; dk ijh{k.k fd;k tk ldrk gSA ¼iSjk 17
1. This second appeal has been filed at the instance of defendants. The suit of plaintiff for declaration of Bhumiswami right and injunction in respect to certain agricultural land has been decreed by learned trial Court and the first appeal which was filed by defendants has been dismissed by the impugned judgment and decree.
2. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal. Suffice it to say that a suit for declaration and injunction in respect to certain agricultural land which is the subject-matter of the suit and description whereof has been mentioned in the plaint, has been filed by the plaintiff on the averments that she never gave any consent in the Revenue Court to get the name of defendant Kawal Singh mutated in the Revenue record. It has also been pleaded by plaintiff that illegally the order has been obtained by the defendants for partition from the Revenue Court and the said order be set aside. A decree of injunction has also been sought that the defendants should not interfere in the possession of plaintiff-Sembai.
3. The suit was resisted by defendants 1 and 2 by filing a joint written statement.
4. The State of Madhya Pradesh has been arrayed as formal defendant in view of Order 1 rule 3B CPC.
5. In the written statement filed by appellant-defendant No.2 it has been pleaded that plaintiff Sembai gave her consent in the Revenue Court by putting her thumb impression on the necessary application filed in that Court and hence, the suit cannot be decreed.
6. Learned trial Court framed necessary issues and after recording the evidence of the parties, dismissed it.
7. The first appeal which has been filed by the defendants has been dismissed by the impugned judgment and decree.
8. In this manner this second appeal has been filed by the defendants.
9. This appeal has been admitted on the following substantial question of law :
“Whether learned trial Court erred in substantial error of law in dismissing the application under section 45 of the Evidence Act of the defendants praying to get the documents Exs.D-4 and D-5 bearing thumb impression of the plaintiff giving consent to mutate the names of defendants, examined by handwriting expert?”
10. The contention of learned counsel for the appellants is that plaintiff-Sembai gave her consent in the Revenue Court to get the suit property recorded in the name of defendants, but, by disowning her evidence as well as thumb impression on the consent application (Exhibits D-4 and D-5) she has filed the present suit. Learned counsel submits that an application under section 45 of the Evidence Act was submitted by defendants in the trial Court to get the thumb impression of the plaintiff-Sembai examined by handwriting expert, but, that application has been illegally rejected by learned trial Court vide its order dated 27.4.2009. Learned counsel further submits that against the said order a petition under Article 227 of the Constitution of India was submitted by the defendants which was registered as Writ Petition No.5090/2009 (Kanwal Singh and Moti Singh v. Smt. Same Bai and State of M.P.). This petition was withdrawn on 14.5.2009 with liberty to assail this point in appeal. Learned counsel has invited my attention to the said order, copy of which has been filed in this Court. Learned counsel further submits that in pursuance to the order passed by the Division Bench of this Court in the aforesaid petition dated 14.5.2009 the defendants in appeal filed another application under section 45 of the Evidence Act before learned first appellate Court praying to get the thumb impression examined by the handwriting expert, but, the said application has been dismissed by learned first appellate Court and appeal has also been dismissed.
11. Learned counsel for the appellants further submits that there are several modes to prove a document and one of the modes to get the document proved is to examine the handwriting expert. Hence, it has been
