2025:HHC:27258 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 705 of 2023 Decided on: 12.08.2025 Ram Chand … Petitioner Versus Sh. Shyam Sunder Mahant (since deceased) through legal representatives Smt. Meera and others .… Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes ___________________________________________________________________ For the petitioner : Mr. Sanjeev Kuthiala, Senior Advocate with M/s Sana Rana and Tamanna Sharma, Advocates. For the respondents : Mr. Maan Singh, Advocate for respondents No. 1(a) to 1(c). Ajay Mohan Goel, Judge (Oral) By way of this petition filed under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:- “a). To call for the record of the case pertaining to the Civil Suit No. 259 of 2011 titled as Shyam Sunder Mahant Vs. Ram Chand pending before the Ld. Senior Civil Judge, Kullu District Kullu and after examining the legality and propriety of the impugned order dated 17.10.2023 (Annexures P-6), the same be pleased to quash and set aside. b). After setting aside the impugned order dated 17.10.2023 (Annexure-P-6), to allow the application moved by the 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:27258 petitioner/defendant under Section 45 of the Indian Evidence Act, 1872 (Annexure P-4), and directing the Ld. court to appoint a handwriting expert for seeking opinion as to the admitted signatures from the disputed signatures.” 2. The petitioner is aggrieved by the order passed by learned Trial Court dated 17.10.2023, in terms whereof, an application filed under Section 45 of the Indian Evidence Act by the petitioner/defendant stood dismissed. 3. Learned Senior Counsel for the petitioner argued that the impugned order is perverse and not sustainable in the eyes of law. He submitted that the learned Trial Court has erred in not appreciating the spirit of Section 45 of the Indian Evidence Act and thus dismissed the application without any due application of judicial mind. Learned Senior Counsel submitted that the findings returned by the learned Trial Court that the intent of the petitioner was to prolong the case by filing the application, are incorrect findings and as the filing of the application was necessitated in light of the averments therein, the rejection thereof is not sustainable in the eyes of law. Learned Senior Counsel has relied upon the following judgments to strengthen his arguments:- (i) Alamgir vs. State (NCT, Delhi) AIR 2003, Supreme Court 282; (ii) Lalit Popli vs. Canara Bank and others, (2003) 3 3 2025:HHC:27258 Supreme Court Cases 583; 4. On the other hand, learned Counsel for the respondent has argued that as there is no perversity in the order passed by learned Trial Court and the application filed under Section 45 of the Indian Evidence Act has been dismissed by the learned Trial Court by passing a speaking and cogent order, the same calls for no interference and the petition be thus dismissed. 5. I have heard learned Senior Counsel for the petitioner as well as learned Counsel for the respondents and carefully gone through the impugned order as well as other documents appended with the petition. 6. The application under Section 45 of the Indian Evidence Act is appended with the petition as Annexure P-4. It is mentioned in the application that the plaintiff was working as a money lender and on 06.12.2008, the defendant borrowed Rs.3.00 Lac from the plaintiff and to this effect, an agreement was executed by the defendant in favour of the plaintiff. In terms of the agreement, it was undertaken by the defendant that he will return the money on or before 10.02.2009. The defendant handed over post dated cheques bearing No. 715731, 715728 and 715728 and a blank signed stamp paper was also given as security by him when he borrowed the amount of Rs.3.00 Lac. As per him, the borrowed amount was returned back with interest by the defendant on 4 2025:HHC:27258 19.02.2009 and agreement dated 06.12.2008 was returned to the defendant by the plaintiff. When defendant asked the plaintiff to return the cheques and blank signed stamp paper, the plaintiff told that they were misplaced and could not be traced. Plaintiff also stated that when the same were traced, he will either return the same or destroy them. It is further averred in the application that defendant is a simple person and plaintiff took advantage of his simplicity and misused said cheques and blank singed stamp papers to grab valuable land of the defendant and procure the alleged agreement to sell in connivance with the scribe and marginal witnesses. In this backdrop, it is stated in the application that for arriving at the right conclusion in the case, it was necessary to send the second page of agreement, i.e. judicial paper of agreement to sell Ext. PW2/B to the opinion of handwriting expert to find out that whether the defendant had signed the said blank stamp paper before drafting of the same or after drafting of the same. 7. In terms of the impugned order, this application has been dismissed by the learned Trial Court by assigning following reasons:- “6. I have heard the learned Counsel for the parties and have gone though the record. 7. From the record it is evident that the evidence of the plaintiff/respondent was closed on 21.10.2016 and 5 2025:HHC:27258 thereafter for 30.12.2016 the case was fixed for evidence of the defendant/ applicant Despite availing sufficient opportunities, defendant/ applicant failed to adduce evidence in time and thereafter exceptional last opportunity was granted for DWs that too subject to costs of Rs.500/-for 28.08.2017 On such date, the defendant/ applicant has tendered his affidavit and thereafter on the next date of hearing i.e. on 06.10.2017 he was cross-examined. On the same day, the defendant/applicant has sought time for moving an application which was ultimately moved on 26.10.2017 under Order 8 Rule 1-A (3) CPC. However, such application was later on dismissed not pressed vide order dated 14.03.2018 and one more adjournment was prayed by the defendant/applicant for moving fresh application for same purpose. Thereafter, on 24.03.2018 such application was moved and it was ultimately allowed on 26.04.2018. Thereafter, on 29.05.2018 the defendant/applicant examined one more witness on account the fact that his aforesaid application was allowed 25.06.2018 the case was listed for arguments but on that date again defendant/applicant moved another application i.e. present application under Section 45 of the Indian Evidence Act. 8. From the above discussed brief history of the case especially qua the adjournments taken by the defendant/applicant for his evidence, it is clear that the 6 2025:HHC:27258 defendant/applicant has availed more than sufficient opportunities to lead his evidence. When the case was already fixed for arguments, then the defendant/applicant has moved the present application that too after taking adjoumments for moving other CMAs under Order 8 Rule 1-A (3) CPC as already discussed above. 9. In view of the aforesaid discussion, this Court finds force in the submission made by the learned counsel for the plaintiff/respondent that the defendant/applicant is only frying to prolong the litigation. It is crystal clear from the record that the present case is of the year 2011 and the present application has been filed in the year 2018. Thus, despite the lapse of such period, the defendant/applicant has failed to move the present application at an earlier stage of the case especially when the evidence was yet to be started. 10. Now when the plaintiff/respondent has and the already closed his evidence defendant/applicant has also led his evidence, at this belated stage this Court is of the firm view that the present application has been filed just to prolong the litigation. The defendant/applicant could have filed such application at an earlier stage, if he was of the view that elucidation of point mentioned in the CMA would be helpful for proper decision of the case, but he has failed to do so for the reasons best known to him. 11. The defendant/applicant has prayed for expert opinion 7 2025:HHC:27258 as to whether the defendant/applicant has signed on the first page of the agreement Ext. PW1/B when it was blank or after it has been drafted. It is pertinent to mention here that the expert cannot give opinion about the same and he can only give opinion of the authenticity of signatures. It is very difficult to say whether the signatures on a paper were put when it was blank or after it was drafted Furthermore, the signature of defendant/applicant on the second page of the agreement Ext. PW1/B seems to be same as on its first page. 12. Keeping in view the above detailed discussion especially the fact that the defendant/applicant has preferred the present application at very belated stage, this Court finds no merit to allow the application in hand which seems to have been filed by the defendant/applicant just to prolong the litigation. Accordingly, the application is hereby dismissed. Application stand disposed of. Application after due completion be tagged with the main case file. 13. Now to come up for arguments on 07.11.2023.” 8. Learned Trial Court thus dismissed the application by holding that the evidence of the plaintiff was closed on 21.10.2016 and thereafter, the case was listed for the evidence of the defendant. Despite availing sufficient opportunities, the defendant failed to adduce sufficient evidence and as an exceptional opportunity, subject to cost, the case was listed on 28.08.2017 to enable the 8 2025:HHC:27258 defendant to lead evidence. On said date, the defendant tendered his affidavit and the case was listed for 06.10.2017 for his cross examination. On this date, the defendant sought time to file an application which was filed by him on 26.10.2017 under Order 8 Rule 10A(3) of the Code of Civil Procedure. This application was dismissed as not pressed on 14.03.2018 and another adjournment was prayed for filing a fresh application for the same purpose. Thereafter, said application was filed on 24.03.2018 and the same was allowed on 26.04.2018. On 29.05.2018, the defendant/ applicant examined one more witness on account of his above application being allowed. The case was thereafter listed on 25.06.2018 for arguments but defendant then filed an application under Section 45 of the Indian Evidence Act. Learned Court thus observed that the defendant has availed more than sufficient opportunities to lead evidence and when the matter was listed for arguments, an application under Order 8, Rule 1-A(3) of the Code of Civil Procedure was filed. It held that conduct of the defendant demonstrated that he was trying to prolong the litigation which was evident from the fact that the suit was filed in the year 2011, whereas the application under Section 45 of the Indian Evidence Act was filed in the year 2018. Learned Trial Court also held that the defendant had prayed that opinion of handwriting expert to find out as to whether the defendant/applicant had signed on the first page 9 2025:HHC:27258 of the agreement Ext. PW1/B when it was blank or after the same was drafted, learned Court held that whereas the expert can only give opinion qua the authenticity of the signatures and not qua the prayers that were made in the application. 9. This Court is of the considered view that the findings returned by the learned Trial Court while dismissing the application call for no interference. It is a matter of record that suit was filed in the year 2011 whereas the application under Section 45 of the Indian Evidence Act was filed in the year 2018. Why so? There is no explanation in the application. This obviously leads to the conclusion that the application was filed with the intent to delay the proceedings as has also been held by learned Trial Court. 10. Section 45 of the Indian Evidence Act provides as under:- “45. Opinions of experts.––When the Court has to form an opinion upon a point of foreign law or of science, or art, or as to identity of handwriting 2 [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, 3 [or in questions as to identity of handwriting] 2 [or finger impressions] are relevant facts. Such persons are called experts. [45A. Opinion of Examiner of Electronic Evidence.—When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any 10 2025:HHC:27258 computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000 (21 of 2000), is a relevant fact. Explanation.—For the purposes of this section, an Examiner of Electronic Evidence shall be an expert.]” 11. Therefore, the provisions of Section 45 of the Indian Evidence Act can be invoked in order to identify the hand writing by referring to the same to the expert and the prayer made in the application is for not identification of the handwriting. 12. Learned Senior Counsel for the petitioner has relied upon para-16 of the judgment passed by Hon’ble Supreme Court in Alamgir vs. State (NCT, Delhi), AIR 2003 Supreme Court 282, relevant portion of which reads as under:- “……16. In our view, however, reliance in Magan (supra) is rather misplaced in the contextual facts since no conviction is based on the opinion of the handwriting expert but admittedly it can be relied upon when supported by other items of internal and external evidence. The handwriting expert's opinion simply corroborates the circumstantial evidence and as such we are unable to record our concurrence with the submissions of Mr. Singh on this score.” 13. Similarly, learned Senior Counsel has relied upon para- 11 2025:HHC:27258 12 and 13 of the judgment passed by Hon’ble Supreme Court in Lalit Popli vs. Canara Bank and others, (2003) 3 Supreme Court Cases 583, relevant paras of which judgment read as under:- “12. Sections 45 and 73 of the Indian Evidence Act, 1872(in short 'the Evidence Act') deal with opinion of experts and comparison of signature, writing or seal with others admitted or proved. Section 45 itself provides that the opinions are relevant facts. It is a general rule that the opinion of witnesses possessing peculiar skill is admissible. There was no challenge to the expertise of V.K. Sakhuja. He deposed to have testified in about ten thousand cases relating to disputed documents. Though the employee highlighted certain adverse remarks, it cannot be lost sight of that they were about four decades back. But we need not go into that aspect in detail as no infirmity in the report acted upon by the authority in the present case was noticed or could be pointed out. 13. It is to be noted that under Sections 45 and 47 of the Evidence Act, the Court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the Court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three Sections of the Evidence Act. They are Sections 45, 47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the Court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion 12 2025:HHC:27258 of the Handwriting Expert, the Court can compare the admitted writing with disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of Handwriting Expert need not be invariably corroborated. It is for the Court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when experts' evidence is not there, Court has power to compare the writings and decide the matter. [See Murari Lal vs. State of M.P.1]. 14. In the instant case, the Enquiry Officer and the Disciplinary Authority took pains to carefully consider the Handwriting expert's report and also looked at the documents to arrive at their own conclusions. 15. Great emphasis was laid on the Forensic Science Laboratory's report to say that the Handwriting Expert's report is not worthy of acceptance. We have looked at the report of the Forensic Science Laboratory. It only says that no definite opinion can be formed. That itself is an indication that a clean chit was not given as claimed by the employee.” 14. The law as has been laid down by Hon’ble Supreme Court with regard to Section 45 of the Indian Evidence Act or opinion of handwriting expert is of no assistance to the petitioner in the facts of this case for the reason that herein it is not the handwriting of an individual which has been refused to be referred to the expert by the learned Trial Court. Trial Court has rejected the 13 2025:HHC:27258 application filed by the petitioner which was to the effect that it be got ascertained from the expert as to whether the signature was appended upon the document by the petitioner before the same was drafted or after the same was drafted. This in the considered view of this Court is not the scope of Section 45 of the Indian Evidence Act. In view of above discussions, as there is no merit in the present petition, the same is accordingly dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly. (Ajay Mohan Goel) Judge August 12, 2025 (narender)