O R D E R

(Delivered on 07/01/2019 In this petition under Article 227 of the Constitution of India, the petitioners have assailed the legality, validity and propriety of the order dated 11/08/2016 (Annexure P/1) passed by Second Additional Judge to First Civil Judge, Class-II Guna in Civil Suit No.31A/2016, whereby the application filed by the petitioners under Order XIII Rule 10 of Code of Civil Procedure for summoning the record from the Court of Sub-Divisional Officer, Guna has been rejected.

(2) The brief facts leading to filing of this case are that suit for declaration of right and permanent injunction with regard to the share in the agricultural land was filed by the respondent No.1/plaintiff. During the cross- examination, the respondent No.1 has denied signature on the compromise which she had submitted before the Sub-Divisional Officer in Case No.42/92-93, therefore, an application under Section 45 of the Evidence Act for summoning the report from the expert and comparison of thumb impression of the respondent No.1/plaintiff was filed which was rejected by the trial Court. Being aggrieved by the same, Writ Petition No.2926/2016 was filed before this Court which was finally decided on 22/06/2016. This Court held that comparison or expert opinion can be sought from the original document and not from the certified copy and defendants have not made any attempt to move any application for production of original document, hence, the writ petition was dismissed. Thereafter, an application under Order XIII Rule 10 of CPC was filed for summoning the record from the Court of Sub- Divisional Officer, Guna where compromise was submitted by the parties and the said compromise possessed thumb impression of the respondent No.1/plaintiff. Certified copy of the aforesaid compromise was admitted in evidence as Exibit D/4, therefore, request was made for expert opinion on the thumb impression on the original record. In these circumstances, original record was sought to be summoned from the Court of Sub-Divisional Officer, Guna. The Court below rejected the application observing that comparison of signature cannot be made with the certified copy of the documents and same can be made with the original record and the original document is not available. The respondent No.1/plaintiff is denying her thumb impression on Exibit D-4, hence for proper adjudication of the matter and for obtaining the expert opinion, the original record is necessary.

(3) On the other hand, learned counsel for the respondents supported the impugned order and submitted that application is highly belated which has been filed after closing of the evidence, therefore, refusal is proper. It is further submitted that petitioner failed to state whether the record proposed to be called for is part of the plaintiff's evidence and cross-examination of the witnesses. The evidence is already closed and there was ample opportunity to summon the record while evidence was going on. No reason was assigned as to why application was not moved earlier. The trial Court is justified in rejecting the application as it had no option available. On these grounds, prays for rejection of the writ petition.

(4) Heard the learned counsel for the parties.

(5) The trial Court rejected the application on the ground that although the respondent No.1/plaintiff had accepted that on the compromise deed in question, her thumb impression has been affixed but the same was affixed taking advantage of her illiteracy by playing fraud. The aforesaid issue is the matter of evidence, therefore, deciding the same at the stage would not be proper and calling for original compromise deed at this stage particularly when Doli Bai has already been cross-examined.

(6) The Supreme Court in the case of Lakshmi And Another Vs. Chinnammal @ Rayyammal and Others [(2009) 13 SCC 25] held that if bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the Court's du