AJAY SWAROOP MEHROTRA Vs. D N RAINA

JUDGEMENT

(1.) -The petitioner is the plaintiff and has filed the suit for a declaration, praying that the sale deed dated 10.5.91, executed by the defendant No. 1, through power of attorney holders defendant Nos. 2 and 3, in favour of defendant Nos. 4 and 5 is illegal and a void document. The facts, as culled out from the writ petition in brief is, that the suit was filed in the year 1991 and, all these years, the suit could not proceed as it was bogged down in a controversy as to whether the suit was maintainable or not. It has come on record that the trial court allowed the application under Order VII, Rule 11 of the C.P.C. which was set aside in the appeal, and thereafter, the matter came to the High Court where it was affirmed, and consequently, after all this exercise, the suit has now proceeded. At the present moment, the stage is set for the leading of the evidence by the parties and, in this scenario, the defendants filed a certified copy of the power of attorney executed by defendant No. 1 in favour of the defendant Nos. 2 and 3, on 16.2.2008. It is relevant to state here that the plaintiff had alleged several grounds in the plaint for declaring the sale deed to be a void and an illegal document but had not challenged it on the ground that the power of attorney was a forged or a fictitious document. But when the power of attorney was actually filed in the Court and the same was examined by the plaintiff, at that stage, an application for amendment of the plaint, was filed to incorporate paragraph No. 5 (I) after para 5 (H) in the plaint to the effect that the power of attorney executed by the defendant No. 1, was a forged and a fraudulent document and fabricated by the defendant Nos. 2 to 5 and that the defendant No. 1 had not executed any power of attorney nor had signed the said document. This application, after contest, was allowed by the trial court, by an order dated 14.7.2008 and necessary amendment has been incorporated in the plaint. The said order, for the time being, has become final inter se between the parties. The paragraph, which has been incorporated in the plaint reads as under : "That the alleged general power of attorney dated 18.4.1991 alleged to be executed by late Dina Nath Raina is false, farzi and fraudulent document and fabricated by the defendant Nos. 2 to 5 to grab the property in suit. Late Dina Nath Raina did not reside at 15/1, Balbir Road, Dehradun, and has not signed and executed any such power of attorney so the sale deed dated 10.5.1991 becomes fraudulent and illegal document. Fraud has been played by the defendant Nos. 2 to 5, so much, so that the vakalatnama, written statement and counter-affidavit, notice dated 1.7.1992, filed in the name of late Dina Nath Raina has not been signed and filed by late Dina Nath Raina and the defendant Nos. 2 to 5 are liable to be punished and prosecuted for perjury under Section 340, Cr. P.C."

(2.) BASED on the aforesaid amendment, the plaintiff moved an application dated 23.7.2008, i.e., within 10 days, praying that he may be permitted to produce an expert evidence. The plaintiff contended that the power of attorney had not been executed by the defendant No. 1 and, that the signatures appended on the said document was forged and that this crucial fact could only be proved by an expert evidence. The plaintiff, therefore, prayed that he may be permitted to get an expert opinion in the matter. This application was opposed by the defendants and the trial court, after hearing the parties, rejected the application, by an order dated 12.8.2008. The plaintiff, being aggrieved, filed a revision which was also dismissed by an order dated 17.9.2008. The plaintiff has now filed the writ petition for the quashing of these orders and for appropriate direction to the trial court.

(3.) AS has been stated herein-above, the plaintiff, had attacked the validity of the sale deed executed by the defendant Nos. 2 and 3 in favour of defendant Nos. 4 and 5 on a variety of grounds and had not attacked it on the ground that the power of attorney executed by the defendant No. 1 in favour of defendant Nos. 2 and 3, was a forged and a fictitious document. This ground was specifically raised after the power of attorney was filed by the defendants in February, 2008 through an amendment application which was allowed by the trial court in July, 2008. Thereafter an application for expert evidence was filed within 10 days of the amendment application being allowed. Consequently, in the opinion of the Court, there is no delay on the part of the plaintiff in moving the said application. The finding on this aspect given by the court below is not correct.