S. K. Jindal & Anr. v. Sri Lakshmi Ammal Educational

Sri Lakshmi Ammal Educational Trust and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. O. P. Goel, Senior Advocate with Mr. Hemant Bassi, Advocate for the petitioners. Mr. Dinesh Arora, Advocate for the respondents. * * * L. N. MITTAL, J. (Oral) : Defendants have filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 01.12.2009 (Annexure P-8) passed by learned Additional Civil Judge (Senior Division), Rohtak. Respondents have filed suit against the petitioners. Evidence of respondents/plaintiffs was led and closed. The case was fixed for evidence of defendants/petitioners. Some witnesses were examined. Petitioners moved application dated 17.09.2009 (Annexure P-1) in the trial court for directing Smt. J. Anusuiya – Chairperson of respondent no.1 Trust C. R. No. 7374 of 2009 2 to give her specimen signatures for comparison with her alleged signatures on letter dated 22.12.1995. The trial court, thereupon, vide order dated

30.10.2009 (Annexure P-3), directed the plaintiffs to produce Smt. J. Anusuiya in the trial court on 04.11.2009. However, she did not appear on

04.11.2009 and was again directed to appear on 11.11.2009. Again, vide order dated 14.11.2009, she was directed to appear on 21.11.2009. However, the plaintiffs filed application dated 21.11.2009 (Annexure P-5) for directing Smt. J. Anusuiya to be examined on Commission. Thereafter, the defendants-petitioners moved application dated 30.11.2009 (Annexure P-7) for withdrawal of their application Annexure P-1 and for disposing of the said application Annexure P-1 as not pressed. Learned trial court, vide impugned order dated 01.12.2009, has allowed application Annexure P-5 moved by the respondents without even disposing of application Annexure P-7 moved by the petitioners. The respondents alleged in application Annexure P-5 that the petitioners have filed application to admit or deny the alleged documents and the suit was fixed for evidence of defendants and for admission and denial of the alleged letter by Smt. J. Anusuiya. The plaintiffs/respondents alleged in the application that Smt. J. Anusuiya is old and ailing and confined to bed and she has no objection to admission/denial of the alleged documents, if examined on Commission. Accordingly, prayer was made for appointment of Commission to examine Smt. J. Anusuiya regarding the alleged documents. The learned trial court, vide impugned order Annexure P-8, appointed Commission to take documents from the Court file and to record statement of Smt. J. Anusuiya as to whether the documents in question bear her signatures or not. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners contended that respondents have falsely alleged in application Annexure P-5 that the petitioners had C. R. No. 7374 of 2009 3 moved application for directing Smt. J. Anusuiya to admit or deny the alleged documents. However, in fact, petitioners had moved application Annexure P-1 for directing Smt. J. Anusuiya to give her specimen signatures for comparison and not for admission or denial of documents. There is considerable force in the argument. The plea taken in application Annexure P-5 by the respondents is factually incorrect. Again, it has been alleged in application Annexure P-5 that the suit was fixed for evidence of defendants and for admission or denial of the alleged letter by Smt. J. Anusuiya. However, the suit was not fixed for admission or denial of the alleged letter by Smt. J. Anusuiya, but was fixed for her personal appearance for the purpose of giving specimen signatures. Learned counsel for the petitioners contended that the Commission exceeded his powers and recorded statement of Smt. J. Anusuiya regarding matters for which the Commission was not appointed or issued. However, admittedly, the petitioners filed objections in the trial court on this plea and the said objections have been dismissed being not maintainable and the said order is under challenge in a separate Civil Revision petition, filed today. Consequently, the said matter is not required to be agitated or adjudicated upon in the instant revision petition. Learned counsel for the petitioners vehemently contended that the respondents have played a big mischief and the trial court has fallen in the trap of respondents. It was contended that the case was at the stage of evidence of defendants. The plaintiffs had already led their evidence in affirmative. Consequently, the plaintiffs could not have examined Smt. J. Anusuiya on Commission, as their witness, either for admission or denial of the documents or for any other purpose. There is considerable merit in the contention. Admittedly, the plaintiffs have led and closed their affirmative evidence. The defendants also led substantial evidence. Consequently, the plaintiffs could not have sought appointment of Commission for examination of Smt. J. Anusuiya, who is none else, but C. R. No. 7374 of 2009 4 Chairperson of plaintiff no.1 Trust, at this stage. The plaintiffs could have examined Smt. J. Anusuiya either in their affirmative evidence or if permissible, in rebuttal evidence or by way of additional evidence. However, the plaintiffs adopted a dubious method to examine Smt. J. Anusuiya on Commission as their witness under the garb of recording her statement for admission or denial of the documents. Learned counsel for the respondents-plaintiffs could not advance any meaningful argument to depict that the plaintiffs had any right to seek examination of Chairperson of plaintiff no.1 Trust, at this stage, when the case was going through the stage of evidence of the defendants and the plaintiffs have already led their affirmative evidence. Appointment of Commission by the trial court for examination of Chairperson of plaintiff no.1 Trust is patently illegal and unsustainable. It may also be noticed that the petitioners had even made application Annexure P-7 for withdrawal of their application Annexure P-1, even before the impugned order was passed by the trial court. Consequently, presence of Smt. J. Anusuiya was not required by the petitioners-defendants for any purpose including the purpose of taking her specimen signatures as her admitted signatures on some other documents had come into picture. For the reasons recorded herein above, the instant revision petition is allowed and impugned order dated 01.12.2009 Annexure P-8 passed by the trial court is set aside. It goes without saying that the statement recorded by the Commission in execution of impugned order Annexure P-8 shall not be taken into consideration by the trial court for any purpose. February 11, 2010 monika ( L. N. MITTAL ) JUDGE