1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER
: S.B.CIVIL WRIT PETITION NO.2014/2015 M/S.Dinesh Medical Store versus Shri Veermaram Charitable Trust, Balotra & ORS.Date of Order :: 13.03.2015 PRESENT HON'BLE Mr.JUSTICE ARUN BHANSALI Mr.Manoj Bhandari, for the petitioner.
Mr.M.M.Dhera, for the respondents.
---- BY THE COURT: This writ petition under Article 227 of the Constitution of India has been filed by the petitioner aggrieved against the order dated 17.01.2015 passed by the appellate court, whereby the application filed by the petitioner under Section 45 of the Indian Evidence Act, 1872 (‘the Act’) has been rejected.
The petitioner filed a suit before the trial court seeking permanent injunction to the effect that the defendants be restrained not to allot any other medical store or permit any other incumbent to sell medicines within the vicinity of the Trust premises, wherein hospital was being run by the Trust.
A written statement was filed by the respondents and the trial court by its judgment and decree dated 18.01.2013 dismissed the suit filed by the petitioner-plaintiff.
2 Feeling aggrieved, the petitioner filed fiRs.appeal, which is pending consideration before the appellate court.
It was the case of the petitioner that he had taken a shop on rent from the respondent-Trust in the year 1989 at the rent of Rs.600/- per month, which was increased to Rs.900/- per month in the year 1993.
It was claimed that proposal was given by the respondent-Trust that if the plaintiff pays rent of Rs.5,000/- per month, the Trust would not permit any other shop to start the business of selling medicines in the hospital premises and the petitioner’s store shall continue to operate in the hospital premises.
The trial court in its judgment relied on the rent-notes dated 17.06.1989, 09.05.1990, 15.08.1995 and 23.08.1995, which were marked as Exhibit – A/1 to A/4 before the trial court.
During the pendency of the appeal, the petitioner filed application under Section 45 of the Act, inter alia, with the averments that the petitioner-plaintiff in the cross-examination specifically denied his signatures on alleged rent-notes Exhibit – A/2 & A/4 and had stated that the rent-notes were concocted; the trial court in its judgment has not expressed any opinion on the genuineness of the said documents and had reserved the objection of the petitioner during the couRs.of his examination.
It was also indicated that the plaintiff has filed criminal complaint before the competent court, which was forwarded to the concerned Police Station, after investigation, negative report was produced, wherein the petitioner filed protest petition and the 3 criminal court by its order dated 19.06.2009 ordered for examination of the rent-notes by Forensic Science Laboratory ('FSL').an application was filed before the trial court for obtaining the documents for the purpose by the investigating officer, which was rejected by the trial court on 05.02.2011.
Further pleas regarding the validity and interpretation of the documents, applicability of Section 92 of the Act were raised and it was contended that for the adjudication of the genuineness of the rent-notes Exhibit- A/2 & A/4, the same needs to be sent for examination by the FSL and it was prayed that the same be sent to FSL for obtaining its opinion.
Though, no reply was filed by the respondents to the application, the application was opposed by them.
The appellate court after hearing the parties came to the conclusion that there was no dispute about the execution of the tenancy between the parties; no application was previously filed by the plaintiff; the order passed by the trial court rejecting the application filed by the investigating officer for obtaining the documents for being sent to FSL has not been questioned by either the investigating officer or the plaintiff; the appeal is pending since March, 2013 and is listed for arguments and for the reasons indicated, the petitioner was not entitled for sending the documents to FSL for report and rejected the application.
It is submitted by learned counsel for the petitioner that the appellate court was not justified in rejecting the application, the trial court non-suited the petitioner only on account of the 4 documents Exhibit-A/2 & A/4 in view of the provisions of Section 92 of the Act and, therefore, the plea raised by the petitioner regarding genuineness of the said documents assumed great significance.
It was submitted that the petitioner immediately raised plea regarding the documents being not genuine, when he was sought to be confronted by the said documents and the trial court during the couRs.of the statement observed that the said aspect would be considered at the time of final hearing, however, no finding was recorded by the trial court on the said aspect.
It was also submitted that no harm is going to be caused to the respondents in case the report of FSL is obtained by the court and the petitioner is prepared to go by the opinion of the FSL without raising any objection or leading any evidence on the said opinion even if the opinion is rendered against the petitioner.
It was prayed that in the interest of justice and for bringing out the truth, it is incumbent that the documents Exhibit- A/2 & A/4 be sent for examination by FSL and after obtaining the report, the appellate court should decide the appeal.
Reliance was placed on Bhagirati Sahu & Ors.v.Akapati Bhaskar Patra : AIR2001Orisa 185; M/S.Janachaitanya Housing Ltd.v.M/S.Divya Financiers : AIR2008Andhra Pradesh 163.
Opposing the submissions made by learned counsel for the petitioner, learned counsel for the respondents vehemently submitted that there is no substance in the present writ petition.
5 The present application and the writ petition have been filed by the petitioner only with a view to delay the disposal of the appeal.
It is submitted that the plea regarding existence of the documents was raised by the defendants immediately on filing of the written statement i.e.in the year 2000 itself.
However, the plaintiff took no action regarding the said documents.
It is only after the suit was filed by the defendants for eviction of the petitioner that the petitioner chose to file criminal complaint before the jurisdictional criminal court and after investigation, when the Police gave final report, the petitioner filed protest petition and when the application was filed before the trial court for obtaining the documents for examination by FSL, the same was rejected.
The petitioner did not take any action against the said order.
During the pendency of the proceedings before the trial court, no application under Section 45 of the Act was filed by the petitioner and even in the appeal the application has been filed after passage of almost two yeaRs.No explanation whatsoever has been indicated in the application or the writ petition for the delay and the stage at which the application has been filed and, therefore, the appellate court was justified in rejecting the application filed by the petitioner.
Reliance was placed on a judgment of this Court in the case of Smt.
Kalpana Lodha v.
Jitenda Singh & Ors.: S.B.Civil Writ Petition No.6191/2014 decided on 13.11.2014.
I have considered the submissions made by learned counsel for the parties.
6 It is no doubt true that application under Section 45 of the Act seeking opinion of expert can be filed at any stage, as held by Andra Pradesh High Court in the case of M/S.Janachaitanya Housing LTD.(supra).however, even as per the said judgment, the same is left open to the discretion of the court for exercising the discretion when exigency so demand depending upon the facts & circumstances of each case.
In the present case, the suit was filed by the plaintiff- petitioner seeking permanent injunction against the respondents on 19.05.1999; written statement was filed by the respondent- Trust on 31.03.2000 and specific reference was made to the rent -note in the written statement and a plea regarding Section 92 of the Act that no oral evidence contrary to the written document is admissible in evidence was raised.
Wherafter, issues were framed by the trial court on 16.05.2001 and specifically issue No.5 regarding the affect of the rent-notes and Section 92 of the Act was framed by the trial court.
During the couRs.of cross-examination of the petitioner on 15.12.2006, the petitioner was confronted with the documents (Exhibit – A/2 & A/4).wherein qua Exhibit – A/2, he denied his signatures and claimed that the same to be fraudulent.
Whereafter, it appears that when a suit seeking eviction of the petitioner was filed by the respondent-Trust in the year 2008, the petitioner filed criminal complaint regarding the said documents, the Police gave FR, to which, protest petition was filed by the petitioner, wherein the criminal court directed 7 sending of the documents for examination by FSL and an application was filed by the Investigating Officer before the trial court, the application was rejected by the trial court on 05.02.2011.
Whereafter, the trial court by its judgment and decree dated 18.01.2013 dismissed the suit filed by the petitioner, inter alia, relying on the rent-notes and Section 92 of the Act.
From the above sequence of events, it is apparent that the petitioner had opportunity since the year 2000 to raise the plea regarding the alleged rent-notes being fabricated and seek expert opinion from FSL and the said aspect was well within the knowledge of the petitioner as on several occasions, the aspect kept on springing up i.e.at the stage of framing issues in the year 2001, cross-examination of the plaintiff in the year 2006, filing of the criminal complaint in the year 2008, rejection of application filed by the Investigating Officer before the trial court in the year 2011, rejection of the suit and filing of the appeal in the year 2013, however, it appears that the petitioner did not think it appropriate at the relevant time to seek expert opinion from FSL regarding the two rent notes, which in the opinion of the petitioner were forged/fabricated.
Merely because an application can been filed at any stage, does not mean that the party can move the said application at his whiMs.As noticed hereinbefore, the petitioner had several occasions when the application could have been properly made by him, however, he failed to move the application on all the 8 previous occasions.
The application filed by the petitioner before the appellate court is conspicuously silent as to why the application was not filed for all these years and what prompted the petitioner to file the application at the stage when the appeal was ripe for final hearing.
Apparently, even in the writ petition, except for challenging the finding of the trial court that the application can be made at any stage, no plea or explanation is forthcoming.
The appropriateness of the stage is also not without significance and an application unless the petitioner/applicant is able to point out reason for moving the application at a particular stage has to be filed at the fiRs.instance so as not to take the other side by surprise and to leave it open for the parties to lead evidence even qua the expert opinion as the expert opinion by itself is not the final word and the same is to be taken into consideration like any other evidence.
The plea raised by learned counsel for the petitioner seeking to abide by the opinion of the FSL also does not advance the cause of the petitioner in absence of any valid excuse for not filing the application at appropriate stage.
In the present circumstances of the case as noticed hereinbefore, it cannot be said that the appropriate stage in the case has arrived only at the stage of hearing of the appeal and not prior to it and, therefore, it also cannot be said that the appellate court committed any mistake in refusing to exercise its discretion in favour of the petitioner.
9 So far as the plea raised by the learned counsel for the petitioner that though the trial court observed that the objection regarding the documents Exhibit – A/2 being fraudulent would be decided at the time of final decision, the trial court has not dealt with the said aspect, is concerned, the plea raised by the petitioner in this regard and its implication on the ultimate judgment would be examined by the appellate court and it cannot be said that on that count the appellate court should have allowed the application filed by the petitioner.
In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed.
(ARUN BHANSALI).J.
PKS