Veerender Singh Siradhana, J. - (1.) THE petitioner/defendant, in the instant writ application, has challenged the legality, validity and correctness of the order dated 19th October, 2013 passed by the learned trial Court allowing an application under Order 7 Rule 14 of the Civil Procedure Code (hereinafter referred to as 'CPC', for short), preferred on behalf of the respondents/plaintiffs subject to payment of cost of Rs. 3,000/ - while reserving right of rebuttal to the petitioners/defendants.
(2.) BRIEFLY , the essential material facts necessary for appreciation of the controversy raised in the instant writ application are: That the respondents/plaintiffs instituted a civil suit for cancellation of the sale deed and the agreement for sale executed on 26th November, 1996. It is pleaded case of the petitioner/plaintiff Gopal Lal (since deceased) that the registered sale deed was executed by impersonating him (Late Gopal Lal). A criminal complaint has also been lodged for offence under Section 420, 417, 418, 467, 468 and 427 read with 120 -B of the Indian Penal Code. The signatures of the respondents/defendants are also stated to be forged on the agreement for sale executed on 28th February, 1979 on a stamp paper of Rs. 5/ -. The 'issues' were settled on 8th January, 2003. On 23rd February, 2011, the respondents/plaintiffs preferred an application under Order 7 Rule 11 CPC read with Section 45 of the Evidence Act, 1872 (hereinafter referred to as 'Act of 1872', for short). However, since the expert, namely, Ms. Renu Kumari, could not be produced as witness in evidence on account of ill health of Ms. Renu Kumari. Therefore, the respondents/plaintiffs obtained a report from another expert, namely, Shri Dinesh Sethi, on 17th May, 2013 and submitted an application on 22nd May, 2013, seeking permission to produce Dinesh Sethi in evidence. The application was resisted by the petitioner/defendant. The learned Court below taking into consideration the contents of the application and it's response as well as after hearing the counsel for the parties, allowed the prayer for taking on record the report and permitted the respondents/plaintiffs to lead evidence subject to payment of cost of Rs. 3,000/ - and also reserving right of rebuttal to the petitioner/defendant. The learned counsel for the petitioner/defendant reiterating the contents of the writ application, has vehemently argued that the order dated 19th October, 2013 is per se illegal and the learned Court below committed an error apparent on the face of record while allowing the application under Order 7 Rule 14 CPC read with Section 45 of the Act of 1872. The learned counsel would further urge that the plaintiff having failed to produce Ms. Renu Kumari as she was not prepared to support her report; has made an attempt to fulfill the lacunae by bringing on record another report, from a different handwriting expert in a case, which is pending since long. Further, the application preferred, is an attempt to further delay the proceedings and thus, a gross misuse of procedure and provisions of CPC. The learned counsel stressed that the reasons and facts pleaded for not producing Ms. Renu Kumari as witness on the ground of illness, are totally false and without any factual foundation. Be that as it may, even if, the ground of illness of the expert witness was to be sustained, the witness could be examined on commission in accordance with procedure provided under Order 18 Rule 19 read with Order 26 CPC.
(3.) I have heard the learned counsel for the petitioner and perused the materials available on record as well as carefully examined the impugned order dated 19th October, 2013.;