Civil Revision No.3088 of 2007 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3088 of 2007 (O&M) Date of Decision: January 21, 2008 Deepak Sharma ...Petitioner VERSUS S.P.Goyal ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Aman Bahri, Advocate, for the petitioner. Mr.Mukul Aggarwal, Advocate, for the respondent. ***** RANJIT SINGH, J. The issue that arises in the present revision petition relates to grant of permission to take photographs of the document when the same prayer earlier was declined and this order was up- held upto the Hon'ble Supreme Court. Civil Revision No.3088 of 2007 : 2 : Respondent filed a suit against H.D.Dumra, father of the petitioner, for specific performance of an agreement to sell dated 21.9.1987. Petitioner, son of H.D.Dumra has filed the revision as his father died on 18.4.2007 and he is substituted as his legal representative. He is aggrieved against the permission granted by the Addl.Civil Judge (Senior Division), Ludhiana to the respondent for taking photographs of the document in the presence of counsel for the petitioner. Suit was filed on 25.5.1988 and the issues were framed on 3.2.1989. The case has, thus, remained pending for over fifteen years. The evidence of the respondent was closed by an order on 4.12.2003. Strange it may be to notice that the cross-examination of respondent was concluded by the petitioner on 19.5.1992. During the course of the proceedings, respondent had moved an application seeking permission to take photographs of the signatures on the alleged agreement in order to get the same examined by an Handwriting Expert. One such an application was allowed on 13.8.1992, but the respondent did not care to get the signatures verified from any expert. He moved another application on 31.5.1993 which was allowed and his Expert, namely, Mr.P.S.Ahuja was permitted to take photographs. The expert took photographs on 4.6.1993, but did not submit any report. According to the petitioner, respondent purposely did not examine Mr.P.S.Ahuja, as according to him, the signatures of H.D.Dumra on document were found fabricated as per the report. Respondent filed yet another application on 9.6.1995 for Mr. N.K.Jain to take photographs as Expert and then to examine him as a witness. He still did not take any action in this regard for over a period of four years, when he moved yet another Civil Revision No.3088 of 2007 : 3 : application on 21.9.1999. This application, however, was dismissed by the trial court on 11.3.2000 on the ground that the earlier applications had been allowed, but the respondent had not taken any step to examine the Expert etc. This order was challenged by filing Civil Revision No.2274 of 2000, which was dismissed by this court on 4.7.2003, copy of which is annexed as Annexure P-2. This court while up-holding the order of the trial court held as under:- “I have also considered the second part of the argument with regard to the permission for taking the photographs. It is clear from the impugned order that the petitioner had been given several opportunities earlier to take the photographs but he had failed to do so. No further time can, therefore, be granted for this purpose. On this aspect the application is dismissed. The parties are directed to appear before the trial court on 15.9.2003. Dasti.” Not satisfied with the same, the respondent filed a review against the order which was dismissed on 19.12.2003 and then he challenged both these orders by filing Special Leave Petition before the Hon'ble Supreme Court which was also dismissed. Liberty, however, was given to the petitioner to raise any plea in an appeal in the event of an occasion arising for the said purpose. It is then that the evidence of the respondent was closed by an order dated 4.12.2003. It is, thus, seen that the respondent made several approaches to examine Expert and was granted permission for taking photographs of the disputed signatures, but still he failed to avail of the opportunities so granted. When the turn of the petitioner came to Civil Revision No.3088 of 2007 : 4 : lead his evidence, he moved an application on 24.1.2004 seeking permission to take photographs of the alleged agreement to prove the forgery committed by the respondent. Taking advantage of this petition, respondent also moved an application on 24.3.2004 for permission to examine Mr.N.K.Jain despite knowing that his prayer in this regard had earlier been rejected and the order impugned had been up-held upto the Hon'ble Supreme Court. The trial Court, in this background allowed the application of the petitioner, but again declined the permission sought by the respondent vide its order dated 5.3.2005. On 17.3.2005, the Handwriting Expert of the petitioner went to take photographs of the document from the trial court file when he found that the forged signature of the petitioner on the agreement was erased/rubbed and the document was, thus, tampered. The matter was brought to the notice of the trial court and after hearing both the sides, the trial court directed the Handwriting Expert, brought by the petitioner, to take photographs of the disputed signatures from photo copy of the alleged agreement already lying on record of the court file. The Handwriting Expert of the petitioner has submitted his report to the effect that the signatures of the petitioner on the alleged agreement to sell are forged. It is the case of the petitioner that the forged signatures on the original copy of the agreement to sell were erased by the respondent and the aspect of the fraud was likely to be exposed from the report of the Handwriting Expert. On 9.5.2006, the trial court directed that the agreement be re-constructed as photo copy of the same is already on record. The petitioner also got FIR lodged against the respondent on Civil Revision No.3088 of 2007 : 5 : 1.4.2006, which was impugned by the respondent by filing a Criminal Misc.Petition before this court seeking quashing of the FIR. The said Criminal Misc.Petition stands dismissed on 30.4.2007. In this background, Expert Balwinder Singh Bhandal, Deputy Director Documents Forensic Science Laboratory, Sector 9- A, Chandigarh has appeared as DW-6 as witness of the petitioner. While cross-examining DW-6, the counsel representing the respondent placed before him a report given by Mr.N.K.Jain dated 21.3.2007 alongwith the photographs taken by said Mr.Jain. The report and the photographs were mark Z1 to Z105. Obviously, the counsel for the petitioner objected to the photographs being produced as taken by Mr.N.K.Jain to be placed on file, which was in complete violation of the earlier orders passed by various courts. The trial court, however, passed the following order:- “Report is Mark Z1 to Z105 (report, photographs and negatives all are objected to on this ground). Counsel for the defendant objects the brining of the report and photographs taken by Mr.N.K.Jain, to be placed on the file as this in complete violations of the order passed by the Hon'ble High Court dt.3.7.2003 and the orders of the court of Sh.Tarsem Mangla, Addl.Civil Judge (Sr.Divn.), Ludhiana dt.5.3.2005 and these photographs having been taken from the court file after concealing all these order from the notice of the Hon'ble Court and at the back of the defendant. Since, the report of Sh.N.K.Jain, is not exhibited. The same will not be considered in evidence. Although the same is put on record. Same will be Civil Revision No.3088 of 2007 : 6 : considered only after hearing both the parties.” When the counsel for the petitioner obtained the certified copy of the application dated 26.3.2007, he came to learn that the trial court on 28.3.2007 had endorsed on the foot of the application allowing the respondent to take photographs of the document in the presence of his counsel without issuing any notice to the petitioner or his counsel. This endorsement granting permission, which is under challenge, reads as under:- “Allowed to photograph this document in the presence of Mr.P.Lal counsel for plaintiff”. The petitioner is rightly aggrieved against this order. It is obvious that the respondent has got this order passed without fully disclosing the background in which his prayer to examine Mr.N.K.Jain had specifically been declined earlier. Petitioner is further justified in saying that the trial court is totally misconceived in granting this permission as afore-mentioned when this prayer had earlier been declined by the court and this order was upheld even by the Hon'ble Supreme Court. The review was also declined by this court as can be seen from order, Annexure P-3, and all these orders apparently have been concealed by the respondent from the court while making it to pass the impugned order, referred to and reproduced above. It is seen that prayer made for seeking permission for Expert N.K.Jain to take photographs had earlier been declined on 5.3.2005 as already noted and certainly the present permission, as has been granted, would amount to nullifying the order passed by this Court as well as of the Hon'ble Supreme Court. It is not Civil Revision No.3088 of 2007 : 7 : understood how the Civil Judge has overlooked this aspect. The helplessness of the petitioner can rightly be appreciated. The respondent has clearly misled the trial court in passing this order and it is clearly noticeable. The respondent obviously is not fair to the court while getting it to make an impugned order. The parties are expected to approach the court in a fair manner and any attempt on the part of a party to mislead deserves to be dealt with heavy hand. Justice cannot be permitted to be polluted in the manner it is sought to be done by the respondent. The permission was granted to the respondent on more than one occasion, but he failed to examine any Expert. The case remained pending for number of years. His request to examine Expert was declined by the trial court, which order, the respondent tested upto the Hon'ble Supreme Court. Having remained un-successful, he appears to have adopted another dubious mode to achieve the same and in the bargain has misled the court while making it to pass the order impugned in the present revision petition. The petitioner had also filed a contempt petition against the respondent which ofcourse was dismissed giving liberty to the petitioner to challenge the order granting permission to take photographs. The petitioner is fully justified in challenging the order and is right in making a grievance that this order otherwise cannot be sustained having been made without serving any notice to him. If this principle of natural justice of hearing parties had been adhered to by the court, the petitioner would have pointed out the background as noted and perhaps the order granting permission to take photographs from the re-constructed document may not have been made. Civil Revision No.3088 of 2007 : 8 : Despite the facts as noticed above, the counsel for the respondent would still justify the action of the respondent and the order passed by the court. He would not listen and would ignore the facts as pointed out to him that permission granted by the court to examine the same Expert in the background where it was declined earlier obviously cannot be justified. He took time and has placed on record certain documents as Annexures R-1 to R-7. Basically the justification given by the counsel for the respondent is that he has been permitted to take photographs of the re-constructed document and as such the earlier orders declining this permission would lose their relevance to test the validity of the orders now made. The counsel further seems to be contending that the tampering if any had been done by an Expert brought by the petitioner, which fact needs to be established. He would refer to the affidavit given by counsel Avinash Chander Gupta, which is on record as Annexure R-4. In this affidavit, the counsel had tried to convey that the file was under inspection by Vikram Raj Singh Chauhan on 17.3.2005 and when the counsel had reached there, said Sh.Chauhan pointed out that the signatures of Hari Dutt Dumra on the original copy of the agreement were lying erased. This line, as adopted by the counsel representing the respondent, would not be of any avail to him. Once the permission sought by him to take photographs of original document was declined, there cannot be any justification for granting him permission to take photographs of the re-constructed document. No doubt, the court had, through order Annexure R-7, granted permission to re-construct the document, but that would not change any factual position in regard to the aspect of denial to the Civil Revision No.3088 of 2007 : 9 : respondent for taking photographs of the document. The accusing finger for tampering of documents is tilting more towards the respondent and he is accused of an offence in this regard. The impugned order, as such, cannot be held justified under any circumstances whatsoever. The present revision petition is accordingly allowed. A direction is hereby issued that the report dated 31.3.2007 given by N.K.Jain Handwriting Expert and the photographs as well as the negatives mark Z1 to Z105 are not to be taken into consideration for any purpose and would stand removed from the record of the trial court with the further direction that respondent would not be permitted to use or rely upon these documents or the report for any purpose whatsoever. The conduct of the respondent cannot be appreciated. He has clearly tried to mislead the court in passing of the impugned order. He has misused the process of the Court and deserves to be dealt with. He must atleast pay the cost of this petition. The revision petition is accordingly dismissed with cost, which is assessed at Rs.5000/-. The respondent shall deposit this cost with the trial court, which the petitioner would be entitled to claim. January 21, 2007 ( RANJIT SINGH ) ramesh JUDGE