VISHWANATH Vs. RAJMANI

JUDGEMENT

(1.) After more than 15 years of filing of O.S. No. 229 of 1996, Vishwanath and another v. Jayanti, plaintiffs-petitioners realised that for comparison of thumb impressions of their father on the sale deed alleged by the defendants to have been executed by him at Calcutta (for cancellation of which the suit in question was filed) register No. 8 and documents from U.P. Sahakari Bank from which petitioners' father had taken loan required to be summoned. Accordingly, they filed application for the said purpose. The defendants had filed photostat copy of the sale deed. The application was rejected on 15.11.2011 by IVth A.D.J./Civil Judge (J.D.), Mirzapur. Against the said order they filed Civil Revision No. 21 of 2012, which was dismissed on 13.7.2012 by District Judge, Mirzapur. hence this writ petition. Both the courts below rejected the application on the ground that provision under which application was maintainable was not pointed out by the plaintiffs. I do not agree with this view. The court is also supposed to know the provision. Learned counsel for petitioners has pointed out that such an application is maintainable under Order XIII, Rule 10, C.P.C. It is not correct. Under the said provision records only from some court may be summoned. The relevant provision is Order XVI, Rules 1 and 6, C.P.C. However, signatures/thumb impression may normally be compared with original document and not with photostat copy. Moreover it has not been mentioned that when photostat copy of the sale deed was filed by the defendants. If it was filed long before then the application deserved to be rejected on the ground of delay and latches.

(2.) Accordingly, impugned orders are maintained but on different grounds. Writ petition is dismissed. However, if the defendants file original sale deed either by themselves or on the application of the plaintiffs under Order XI, Rule 12, C.P.C. then similar application for summoning the document for comparison of thumb impression may again be filed.