MAHAVIR SINGH Vs. NARESH CHANDRAS

JUDGEMENT

(1.) Leave gran-ted.

(2.) This appeal arises out of an order made by the High Court in a revision petition filed under Section 115 of the Code of Civil Procedure, 1908 by which it allowed an application filed by the respondents-plaintiffs under Order XLI, Rule 27 read with Section 151, CPC by setting aside the order dated 24-12-1999 passed by the learned District Judge, Gurgaon, refusing to permit the respondents-plaintiffs to adduce additional evidence by the said application. The respondents-plaintiffs filed a suit for: (i) specific peformance of the agreement to sell dated 30-1-1995, (ii) delivery of vacant possession, and (iii) a declaration that the defendant No. 1 was an absolute owner of the land measuring 102 kanals and 14 marlas as described in the plaint. In pursuance of the said agreement, it is alleged that the defendants submitted on 7-2-1995 an application to the Income-tax Department for obtaining clearance for sale of the said land which was signed by the plaintiff No. 1 and defendant No. 1 along with certain other documents attached thereto. After trial, the trial Court dismissed the suit against which a regular appeal was filed. In the course of the trial the original agreement of sale produced before the Court was sent for scientific examination. PW-8, Ashok Kashyap, who is stated to be Hand-writing and Finger Prints Expert, deposed that he had examined the original agreement to sell dated 30-1-1995 and found evidence of interpolation at pages 2 and 3. In the appeal filed before the learned District Judge, an application under Order XLI, Rule 27, CPC read with Section 151, CPC is filed by the respondents to adduce additional evidence. The contention put forth in the appellate Court is that the original agreement or sale and the copy of agreement produced before Income-tax Department should be examined by Forensic Science Laboratory, Government of N.C.T., Delhi or by any other Government Forensic Science Laboratory having sufficient instruments or apparatus for detection of erasyers (erasure) thereby asking the Court to make detailed inquiry as to whether the said facilities are available in any laboratory and then to send the documents to such laboratory. The appellate Court dismissed the said application by the order made on 24-12-1999. Being aggrieved by that order, a revision petition was preferred before the High Court, as stated earlier.

(3.) It is unfortunate that the appellant made a representation to the Chief Justice of the High Court to list the case before another Judge in the circumstances set forth in the representation and a copy of which was also sent to the learned Judge. However, it appears that this aspect does not seem to have been pursued with and the same learned Judge before whom the matter was listed heard the matter and decided the same. These allegations have been reiterated in the course of the special leave petition. Preliminary objection is raised by the respondents to the effect that the case came up for hearing in the High Court on 28-3-2000 and 25-4-2000, while the representation had been made on 23-3-2000 but not brought to the notice of the learned Judge nor any objection to this effect during the course of the hearing of the matter by the learned Judge was raised before him before the arguments were concluded and, therefore, reiteration of those apprehensions in the course of the special leave petition will tantamount to making allegations against the learned Judge of the High Court which are uncalled for and this Court should not entertain the special leave petition at all in view of the conduct of the appellant. We have given our anxious consideration to this aspect of the matter. Though certain apprehensions have been expressed by the appellant as to the appropriateness of the hearing of the matter by the learned Judge whose order is under appeal before us, the same has not been pursued with either before the same learned Judge or before the learned Chief Justice of the High Court. A mere reiteration of the circumstances set forth in the said representation will not disentitle the appellant to file this special leave petition. In that view of the matter, we overrule the preliminary objection raised by the learned counsel for the respondents.