Bhagwati Bai vs Brijbai

Sujoy Paul, Judge

This petition under Article 227 of the Constitution is directed against the order dated 11.1.2012 whereby an application preferred u/s 151 C.P.C.(Annexure P-5) dated 18.8.2011 was rejected by the Court below. The defendant/petitioner filed the said application on the ground that earlier the present respondent No. 1 filed a suit which was decided by Rajinama. In the said plaint, application for Rajinma and in various order sheets, thumb impression of the present respondent No. 1 are there and, therefore, since present respondent No. 1 in her examination-in-chief has stated that she had not entered into any Rajinama, therefore, it is necessary to examine the thumb impressions by an expert. The Court below rejected the said application for following reasons:-

(1) There is no pleadings in the written statement of the defendant/present petitioner in this regard and in absence of any such objection in the pleadings, no interference is required.

(2) The objection was belatedly taken.

I have heard the Learned Counsel for the petitioner in this regard.

By placing reliance on para "?" of the written statement, Shri Rajput, Learned Counsel for the petitioner submits that finding of the Court below is clearly erroneous and runs contrary to record. There exists a specific pleading against the plaintiff that she had put her thumb impression in the earlier round of proceedings. He further submits that when the plaintiff deposed her statement and controverted the said pleadings by saying that she was not party to any such litigation, promptly the application Annexure P-5 was filed.

Shri D.D. Bansal, Learned Counsel for the respondent No. 1 supported the order and submits that even if there is such Rajinama it has no impediment and it will not go against the petitioner.

I have heard the Learned Counsel for the parties.

This is settled in law that under Article 227 of the Constitution, this Court can interfere when the order is perverse and runs contrary to record. In my considered opinion, the finding of Court below that there is no pleading taking objections is totally perverse and runs contrary to the record. The aforesaid portion of written statement makes it crystal clear that the present petitioner had taken specific objection/averment regarding the earlier round of litigation. I also find force in the contention of Shri Rajput that soon after the stand of respondent No. 1 was clear before the Court below that she was not a party in any earlier round of litigation, he promptly filed this application. Thus, both the reasons assigned by the Court below for rejecting the said application are clearly erroneous and the Court below is bound to keep in mind that the litigation before the Courts of law are not game of chess. The litigants are required to put-forth their case with honesty and they are required to narrate full facts and they cannot be permitted to conceal the facts to get justice by ''hook and crook''.

Considering the aforesaid, the impugned order dated 11.1.2012 cannot be permitted to stand. It is accordingly set aside. The application filed by the petitioner is allowed. The Court below shall take appropriate steps to appoint an expert on the subject to do the needful as desired in Annexure P-5.

At this stage, Shri Bansal submits that if expert evidence comes against him, the respondent No. 1 be given liberty to file an appropriate application rebutting the same. If law permits, the respondent No. 1 is at liberty to file such an application. I have no doubt that if such an application is filed, the Court below will deal with it in accordance with law. Resultantly, the impugned order is quashed. The petition is allowed. No costs.