ASHOK KUMAR Vs. AVTAR SINGH

JUDGEMENT

(1.) THIS revision petition is directed against an order dated 5.12.1985 passed by the learned Additional Senior Subordinate Judge, Ludhiana, whereby an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure filed by the petitioner was dismissed.

(2.) THE application was opposed by the respondent. He asserted that the petitioner were duly served personally with a summons on the ejectment application moved by him. The had full knowledge of the ejectment proceedings but they chose not to appear and contest the same. The earlier round of litigation between the parties was admitted but it was claimed that in the earlier proceedings the Court had held that the respondent was the owner of the house but he could not claim possession of the same from the petitioners because of his own act and conduct. He claimed that after the earlier litigation had ended the petitioners had requested him that they should be allowed to live in the house as tenants as long as they reside at Ludhiana and thereafter they would vacate and deliver possession of the same to him. He had agreed to their request through no formal document reducing in writing the terms settled with the intervention of common friends had come into being. They had agreed to pay rent at the rate of Rs. 800/- per month and since they failed to do so he had filed the ejectment application. He denied that the petitioners did not have knowledge of the ejectment order before 12.4.1985 and, therefore, claimed that the instant application was barred by time. On the pleadings of the parties, the learned trial Court framed the following issues :-

(3.) I have heard the learned counsel for the parties and have also closely scrutinised the record of the learned trial Court including documentary as well as oral evidence. I am clearly of the view that the order under revision suffers from material irregularly and illegality in the exercise of its jurisdiction and, therefore, the same cannot be sustained. R.S. Sood AW-1, Assistant Cashier United Commercial Bank, brought in original the specimen signatures of Ashok Sharma and Krishna Piari petitioner No. 1 and 2 which were in possession of the Bank respecting their bank accounts. In the presence of counsel for both the parties in the Court photographs of these specimen signatures were taken by Sidh Ram Photographer and deposition to this effect is contained in the statement of AW-1. Kewal Krishan Assistant Mechanical Engineer, Diesel Shed, Tuglakabad, appeared as AW-2. He brought in Court the Foreman daily shifted diary. He stated that this diary is maintained for the discharge of duties by the Foremen and they make entry regarding their work during duty hours. He stated that petitioner No. 1 was present in Diesel Shed, Tuglakabad, Delhi, on 25.11.1984 and he was on rest on that day. His was an essential service. Normally every employee attended a Diesel shed on the rest day as it is an essential service. He categorically stated that Ashok Kumar was present thereon 25.11.1984. He was further stated that petitioner No. 1 gave instructions to the other Foremen, in writing, working under him on 25.11.1984. He produced the relevant entry of the register Exhibit A-1. Petitioner No. 1 appeared as AW-4 and deposed to the same facts. Petitiner No. 2 appeared as AW-5. She stated that she was living with her son petitioner No. 1 at Delhi and she was not at Ludhiana on 25.11.1984. She also stated that the summons Exhibit DA did not bear her signatures nor those of her son. AW-4 and AW-5 also deposed to the effect that when on 12.4.1985 the respondent armed with warrants for possession came along with the Bailiff, they got knowledge of the fact of the ex parte order of ejectment. The had no prior knowledge The specimen signatures of the petitioners, photographs of which were taken in Court from the record of the Bank produced by AW-1 were compared with the disputed signatures on the summons Exhibit DA by Dewan K.S. Puri Document Expert, Patiala, who submitted his detailed report and also appeared as AW-3 before the trial Court. He stated that the disputed signatures on the summons were clear cut forgery and were not the genuine signatures of the petitioners. He supported his conclusion with detailed facts contained in his report. He was cross-examined at length but I do not find anything in the cross-examination which might be said to cast doubt on the veracity of his opinion. The respondent produced Gurdial Singh Process Server as RW-1. He stated that he served the summons on the petitioners in the presence of the respondent and obtained their signatures. The respondent had identified the petitioners and had attested his report regarding service on the petitioners. In cross-examination he admitted that he did not get the petitioners identified from any resident of the locality. The respondent had accompanied him to get the service effected. He denied that he colluded with the petitioners and made bogus report of service. The respondent, of course, in his statement as RW-2 supported his defence. The learned trial Court in the impugned order has no doubt taken note of the previous litigation between the parties in which the respondent had failed to obtain a decree for possession of the house in dispute against the petitioners upto the Final Court but unfortunately sidetracked this important aspect of the case by stating that none of the parties had placed the judgment and decree passed it the earlier suit by the trial Court, by the High Court and by the Final Court. The fact that the complete round of the previous litigation was detailed in the instant application by the petitioners and had been duly admitted by the respondent in his reply was unfortunately overlooked. The judgment dated November 3, 1983 of the learned Single Judge of this Court between the parties in R.F.A. No. 321 of 1975 as also the order of the Division Bench dated May 22, 1984 dismissing the Letters Patent Appeal No. 298 of 1984 filed by the respondent have been perused by me. It is clear that subsequent thereto, the respondent filed petition for Special Leave to Appeal in the Supreme Court which also failed. Without losing much time thereafter the ejectment application was filed by the respondent before the Rent Controller for eviction of the petitioners on 27.10.1984. The bogles imagination that the petitioners would have made any request to the respondent, as averred by him in his reply to the instant application, that they should be allowed to continue in the house in dispute as tenants so long as they were living at Ludhiana. There was no occasion for them to make any such request. The respondent had already failed to obtain a decree for possession of the house in dispute. His claim for possession had been strenuously resisted by the petitioners all along in the entire chain of the previous litigation. It is hard to believe that they agreed to pay Rs. (sic)00/- per month as rent for the house which was already in their occupation. There is, therefore, a reasonable apprehension that institution of the ejectment application was a ruse played by the respondent and he misused the process of the Court by doing so. At any rate this aspect of the case is ultimately to be tried on merits if the petitioners are allowed to contest the ejectment application filed by the respondent. The learned trial Court has brushed aside the report and statement of Dewan K.S. Puri, the Hand-writing Expert on the ground that the petitioners ought to have given their specimen signatures before the Court and that the Handwriting expert could not make the photographs of the specimen signatures from the Bank record produced by AW-1 as the basis for comparison with the disputed signatures on the summons. As already mentioned above the original specimen signatures were produced by AW-1 in Court, the photographs therefrom were taken in the Court during the course of statement of AW-1. The counsel of neither of the parties objected to this procedure. It was clear to the Court also that the photographs of these specimen signatures had been taken for purposes of comparison of the disputed signatures on the summons with the same as the petitioners had in no uncertain terms averred on their application that their purported signatures on the summons Exhibit DA were forged. In these attending circumstances for the trial Court to opine in its order that the petitioners ought to have given their specimen signatures in Court is nothing but an excuse of getting rid of the cogent, elaborate and well reasoned opinion rendered by Dewan K.S. Puri, Handwriting expert who is one of the rare experts in this region known for giving candid opinion irrespective of the fact whether it goes in favour of or against the party engaging him. The learned trial Court has not at all examined the opinion of the expert. No doubt his opinion was meant to assist the Court in reaching at its own independent finding whether the disputed signatures are those of the petitioners or the same are mere forgery. No attempt to make comparison of the disputed signatures with the specimen signatures has been made by the trial Court. I have, however, examined both the sets of signatures. I have no doubt in my mind that the opinion of Dewan K.S. Puri that the disputed signatures are a forgery is correct. I have also compared the signatures of the petitioners on their application dated 15th April, 1985 with the disputed signatures as also with the specimen signatures photographs of which were taken from the record of the Bank brought by AW-1. I find that the signatures of the petitioners on the aforesaid application with their specimen signatures on the bank record, above referred to. It is clear to the naked eye that the purported signatures of the petitioners on the summons Exhibit DA are not genuine and are clear forgery. I need not detail here the different aspect of disparity between the two sets of signatures as these have been elaborately set out by Dewan K.S. Puri in his report as also in his statement in Court. I have, therefore, no doubt in my mind that the petitioners were not served personally with the summons of the ejectment application on 25.11.1984.