AWADH NARAYAN TRIPATHI Vs. ROOPNARAYAN

JUDGEMENT

(1.) The present petition has been filed by the petitioner challenging the order dated 18.7.2019 passed 1st Civil Judge, Class-II, Ashoknagar to 3rd Additional Judge, Ashoknagar District Ashoknagar (M.P.) in Civil Suit No.27A/2012, whereby the application filed by the petitioner under Order 16 Rule 1 and 2 read with Section 151 CPC has been rejected.

(2.) Learned counsel for the petitioner has submitted that the learned trial Court has failed to take into consideration the admitted signature of late Durgaprasad in Civil Suit No.211A/1989 filed by Pramod Kumar, wherein late Durgaprasad has submitted the written statement and the statement in chief which was duly signed by him, the Vakalatnama of the counsel having his signature. The aforesaid documents on which the signature of late Durgaprasad was apparent are certified copies of the documents and were not taken into consideration by the learned trial Court while dismissing the application. It is alleged that late Chintamani, late Durgaprasad and Ganeshram are the real brothers sons of late Shobharam. They were having ancestral agricultural land and other properties, that was divided in all the three brother with mutual consent and the panji was duly signed before the Tehsildar and thereafter Tehsildar passed the order. During the lifetime of Chintamani and late Durgaprasad, there was no challenge to the mutation panji and partition, but after the death of late Durgaprasad his legal representative filed a suit for declaration of right and permanent injunction with respect to the same land which was also divided by all the three brothers. It is further submitted that one Pramod Kumar S/o Shri Shantilal filed a civil suit against late Durgaprasad which was registered as civil Suit No.211A/19 89 for specific performance and permanent injunction and in the said Civil Suit Durgaprasad engaged Shri Shyam kishore Saxena as his counsel who has submitted his written statement under Order 18 Rule 4 CPC on affidavit and reply to the applications were filed during the proceedings of the Civil Suit. In the present Civil Suit, as the signatures on the mutation panji dated 07.07.1987 were disputed by the plaintiffs and the defendant No.1, present petitioner has filed an application under Order 16 Rule 1 and 2 read with Section 151 CPC for calling the report of the handwriting expert of comparison of signatures of Durgaprasad on the written statement another documents as the signature of late Durgaprasad were appearing on the certified copies of the documents which has been obtained by the defendant and were filed alongwith the application. It is alleged that once there is denial by the plaintiffs of the signature of late Durgaprasad, therefore, the signature are required to be compared with the other signatures of Durgaprasad who are very well in existence in the trial Court in Civil Suit No.211 A/1989. It is alleged that learned trial Court has not taken into consideration all the aforesaid documents and has rejected the application only on the ground that there is no admitted document on record which could show the signature of Durgaprasad for comparison. The plaintiffs have specifically denied the signature of late Durgaprasad on all the documents filed by the defendants alongwith the application. Thus, in absence of any admitted signatures of late Durgaprasad on record no direction can be issued for verification of signature. It is further submitted that aforesaid documents are public documents and are certified copies of the documents which are being obtained from the learned court below. Therefore, there is no denial by the plaintiffs to the effect that the late Durgaprasad have not contested the Civil Suit and has not filed written statement, affidavit and Vakalatnama etc. on the basis of which the learned trial Court has passed the judgment and decree, therefore, he has prayed for quashment of the impugned order with the direction to the learned trial Court to allow the application.

(3.) Per contra counsel appearing for the respondents has supported the impugned order and has argued that the there is no illegality committed by the learned trial Court. It is further contended that the plaintiff has specifically denied the signature of late Durgaprasad on the documents, therefore, once there is no admitted signature on record the comparison of signatures cannot be done and the Civil Suit is at the plaintiff evidence stage and aforesaid document can very well be ascertained during evidence. Learned counsel for the respondents has further argued that the application under Order 16 Rule 1 and 2 does not make any provision for verification of signatures from handwriting expert rather an application under Order 45 of Evidence should have been filed by the defendants. The applications were also not supported by the affidavit, therefore, the learned trial court has not committed any illegality in the impugned order.