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Himachal Pradesh High Court · body

2025 DAILYLAW 4101 (HP)

MAHESH KUMAR v. Rajinder Saini Coram

2025-12-17

Ajay Mohan Goel

body2025
JUDGMENT : AJAY MOHAN GOEL, J. By way of this petition, the petitioner has assailed order dated 22.10.2024, passed by the Court of learned Civil Judge, Court No.III, Mandi, in terms whereof, the application filed by the petitioner under Section 39(1) of the Bharatiya Sakshya Adhiniyam, 2023 (hereinafter referred to as “the 2023 Act”), has been dismissed. 2. I have heard learned Senior Counsel for the petitioner as well as learned counsel for the respondent and have also carefully gone through the order under challenge as well as the other documents appended with the petition. 3. A perusal of the pleadings demonstrates that the petitioner/plaintiff has filed a suit for recovery of Rs.8 lac alongwith interest against the defendant. During the pendency of this Civil Suit, an application was filed by the petitioner under Section 39(1) of the 2023 Act, in which, it was averred that, the defendant had appeared as DW-1 and had denied his signatures on receipt Ex.PW-1/J, dated 23.11.2013, which was the acknowledgement of defendant of having received an amount of Rs.8 lac from the plaintiff. It was further averred in the application that the defendant otherwise had admitted his signatures on agreement Ex.PW1/E. According to the applicant/petitioner, the defendant had intentionally changed his signatures, which was evident from other documents on record and in this backdrop, a request was made to have the signatured of the plaintiff on receipt Ex.PW-1/J compared with Ex.PW-1/E which were the admitted signatures of the defendant. 4. The application was resisted by the non- applicant/defendant, inter alia, on the ground that the defendant had never issued any receipt or acknowledgment and that when the defendant was taken into illegal custody by the police of Police Station Balh, at the instance of the plaintiff; the police had taken signatures of the defendant on various blank papers. 5. Learned Trial Court in terms of order dated 22.10.2024, has dismissed the application by returning the following findings:- “Specific reliance is place on agreement Ex.PW-1/E and receipt Ex.PW-1/F. In the former document, the defendant is stated to have admitted his signatures but denied the same in the latter receipt. Certainly, this fact is not controverted by the defendant as far as his signatures on the agreement is concerned, under the defence that his signatures were obtained forcibly on blank papers. Certainly, this fact is not controverted by the defendant as far as his signatures on the agreement is concerned, under the defence that his signatures were obtained forcibly on blank papers. The signatures on the statement by way of evidence, written statement are evidently different and without touching on the merits of the case, it can be gathered that the defendant has written his entire name as Rajinder Singh while signing the written statement and, on the other hand, when his statement by way of evidence was recorded, he has put different signatures. No reason whatsoever has been assigned by him to enable the Court to determine as to why the defendant used different signatures at different places. This Court has also perused the vakalatnama through which it transpires that the defendant has signed as Rajinder Singh. The present application has been moved at the stage of arguments. Where the defence of the defendant is specific and he does not admit receiving any payment even in his written statement, this Court cannot allow the plaintiff to fill up the lacunae in his evidence by permitting an expert to his opinion in the on change in signatures which does not require notice of an expert, however, moving the application at a belated stage when the pleadings of the defendant has been consistent from the very beginning, shall not assist the plaintiff. The defendant has always denied receiving payment and it is not a new fact which was discovered subsequently. The burden to prove a case shall always lie on the plaintiff and at the stage of arguments, such application cannot be permitted to be allowed. With this, the application stands disposed of as having been dismissed. Be disposed of and be tagged with main case file for record.” 6. This Court is of the considered view that in the facts of the case, the impugned order is not sustainable in the eyes of law. With this, the application stands disposed of as having been dismissed. Be disposed of and be tagged with main case file for record.” 6. This Court is of the considered view that in the facts of the case, the impugned order is not sustainable in the eyes of law. Because, it was the consistent case of the plaintiff that Ex.PW-1/J was the acknowledgment, executed by the defendant under his signatures of having received an amount of Rs.8 lac and as the defendant had admitted his signatures on Ex.PW-1/E, it would have been in the interest of justice, if the learned Trial Court had referred the signatures upon Ex.PW-1/J to a Handwriting Expert to have his opinion by comparing the non-admitted signatures with the admitted signatures of the defendant on agreement Ex.PW-1/E, the same on one hand, would not have prejudiced the case of the defendant and on the other hand, it would have had assisted the Court in the adjudication of the case. The Court is making this observation for the reason that if the version of the defendant is to be believed that the signatures on Ex.PW-1/J were not his signatures, then, the defendant should not be having any problem in having the said signatures compared by a Handwriting Expert with his admitted signatures. Obviously, objection to such request of the plaintiff by the defendant casts doubt over the correctness of the stand of the defendant taken in the pleadings. This important aspect of the matter has not been taken into consideration by the learned Trial Court while dismissing the application. 7. Accordingly, this petition is allowed. Order dated 22.10.2024 is set aside and learned Trial Court is directed to obtain the opinion of a Handwriting Expert by sending Ex.PW- 1/J alongwith Ex.PW-1/E to a Handwriting Expert and have his opinion qua the signatures upon Ex.PW-1/J by comparing the same with the admitted signatures of the defendant on Ex.PW- 1/E. 8. The petition stands disposed of, so also pending miscellaneous applications, if any.