1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.6850/2007 (Rajendra Singh Vs. Agriculture Indebt Relief Court cum Civil Judge (SD), Rajgarh & Ors.) Date of order : 06.02.2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. J.R. Beniwal, for the petitioner. Mr. Manoj Rathore for respondent No.2. Heard learned counsel for the parties. By way of filing the present writ petition, the petitioner has prayed for quashing the order dated 29.9.2007 (Annexure – 7) passed by Agriculture Indebt Relief Court cum Civil Judge (Senior Division) Rajgarh, District Churu upon the application filed by the petitioner for sending two receipts to hand writing expert for seeking report. The said two receipts are said to be issued by the plaintiff - respondent No.2 to other persons and those receipts bears the signatures of plaintiff- 2 respondent No.2 Subhash. In the application, it is stated by the petitioner that plaintiff respondent No.2 borrowed money from Rajeram S/o Jagmal and one Sona Devi and a promissory note, receipt and agreement was executed by him in favour of above persons. After filing this application by the defendant – petitionr in the suit filed by plaintiff – respondent No.2, the plaintiff - respondent No.2 filed his reply and after considering the application as well as reply, the learned trial Court rejected the said application in which the petitioner was seeking to obtain report from hand writing expert with regard to the comparative signature. The main contention of the learned counsel for the petitioner is that the learned trial Court has committed serious error in rejecting the application submitted by the petitioner. As per the petitioner, the report of hand writing expert was necessary for proper adjudication as upon both the receipts, the respondent No.2 put his signatures at the time of borrowing money. It is contended by the learned counsel for the petitioner that both the receipts were not in his possession when written statement was filed by him but both these documents are required to be sent to hand 3 writing expert for ascertaining the correctness of signatures of plaintiff-respondent No.2. A reply to the application was filed by the plaintiff – respondents No.2 and it was prayed that both these documents are not part of the proceedings, so also, there is no assertion in the written statement by the petitioners with regard to these two receipt for which the petitioner is making prayer for sending to hand writing expert to ascertain the correctness of signatures of plaintiff respondent No.2. I have perused the application as well as reply filed by plaintiff – respondent No.2 and the impugned order. The defendant - petitioner has filed an application under Order 7 Rule 14 of CPC read with Section 45 and 47 of the Indian Evidence Act. The said application was filed while mentioning wrong provisions of law because under Order 7 Rule 14 of CPC, the application can be filed by the plaintiff whereas this application was filed by defendant- petitioner before the trial Court. Order 7 Rule 14 of CPC reads as follows : “O.7 R.14. Production of document on which plaintiff sues or relies – (1) Where a plaintiff sues upon a document or relies upon document in his possession or power 4 in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.” Therefore, obviously upon the application wrong provision was mentioned by the defendant - petitioner but on this count, the application cannot be rejected. Therefore, the trial Court while ignoring this fact decided the application because as per Order 8 Rule 1A, there is a duty casts upon the defendant to produce documents upon which relief is claimed or relied upon him. 5 I have perused the relevant provision of Order 8 Rule 1A of CPC. Order 8 Rule 1A of CPS clearly speaks that where the defendant bases his defence upon a document or relief upon any document in his possession or power, in support of his defence or claim for set off or counter claim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement. However, first prior condition is that those document upon which the defendant bases his defence. But in this case, upon perusal of written statement, it is obvious that these documents which are filed subsequently along with application with the prayer for sending those documents to the hand writing expert were not even mentioned in the written statement. If the defence of the petitioner in the written statement is not based upon those documents, then, in my opinion, the learned trial Judge has not committed any error while rejecting the application filed by the petitioner for sending two receipts to hand writing expert. Therefore, I see no reason to interfere with the order dated 29.9.2007 passed by learned trial Court because the suit, affidavit and 'vakalatnama' 6 filed by the plaintiff-respondent No.2 along with his signatures were sent to the hand writing expert and those documents are part of the proceedings. Accordingly, the writ petition is dismissed. (GOPAL KRISHAN VYAS), J. arun