AYODHYA PRASAD Vs. DAYARAM

JUDGEMENT

(1.) PETITIONER has challenged the order dated 15.3.2014, whereby his applications filed under Order 13 rule 10 and Order 16 rule 1 of the Code of Civil Procedure were rejected by the Court below.

(2.) THE petitioner/defendant No. 1 filed the said application under Order 13 rule 10 (Annexure P -6) by contending that between the plaintiff and defendant No. 1, a partition had taken place on 27.10.1995. The factum of said partition was duly recorded by Assistant Settlement Officer on 27.10.1995. Plaintiff Dayaram put his thumb impression on the relevant document before the said Officer. However, during cross -examination the plaintiff denied about his thumb impression aforesaid. The petitioner accordingly prayed that original record be summoned from the concerned revenue Court. Another application under Order 16 rule 1 CPC is filed with a prayer to summon the handwriting expert to examine the thumb impression and signature etc. The petitioner stated that he is ready to pay the requisite charges for summoning the said expert. These applications are rejected by impugned order. The Court below rejected the said application by holding that whether it is thumb impression of the plaintiff or not can be established by leading evidence and examining certain persons. Plaintiff remained present in ''Bandovast '' proceedings or not, can be proved by producing relevant applications, notices, order sheets and ''Vakalatnama '', etc. In view of this finding, the application preferred under Order 13 rule 10 CPC was rejected. Second application under Order 16 rule 1 CPC was rejected because first application under Order 13 rule 10 CPC was rejected.

(3.) SHRI A.V. Bharadwaj contends that a legally known mode to establish something is adopted by the petitioner. It was not a mode unknown to law nor impermissible in law. If another mode is also permissible, it cannot be a ground to reject the claim. He relied on certain judgments.