Expert evidence is merely an opinion: Delhi High Court

CM(M) 462 2020 IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 14th July 2021 Pronounced on: 10th August 2021 + CM462 2020 CM APPL.23147 2020ASHOK KUMAR MALHOTRA .....Petitioner Through: Mr. Vijay Kinger Advocate Versus SUNIL TULI .....Respondent Through: Mr. Satish Sharma Advocate CORAM: HON BLE MS. JUSTICE ASHA MENON JUDGMENT 1. This petition under Article 227 of the Constitution of India has been filed by the defendant in Suit No. 553 2017 against the order of the learned Trial Court dated 18th August 2020 whereby it dismissed the application under Order XVIII Rule 17 of the Code of Civil Procedure 1908moved by the petitioner defendant for re opening of evidence recalling witnesses and directions to the respondent plaintiff to submit documents for comparison of signatures. 2. The respondent plaintiff had filed the suit for possession permanent injunction and recovery of arrears of rent and mesne CM(M) 462 2020 profits damages against the petitioner defendant. The trial was at the stage of defendant’s evidence the respondent plaintiff having led his evidence when the petitioner defendant moved an application seeking comparison of the signatures on a receipt dated 4th September 2005 with the admitted contemporaneous signatures of the respondent plaintiff. That application was allowed vide orders of the learned Trial Court dated 22nd December 2018. The defendant’s evidence was closed on 22nd March 2019 and the FSL report was awaited for on 27th April 2019. The FSL report was inconclusive and sought more documents for comparison. 3. The application under Section 151 CPC moved for re opening defendant’s evidence was dismissed as was the request for directions to the respondent plaintiff to submit more documents for effective comparison. 4. Mr. Vijay Kinger learned counsel for the petitioner defendant submitted that the learned Trial Court had discussed the entire merits of the defence raised by him due to which the petitioner defendant has been greatly prejudiced. Particularly as he had filed CS No.358 2020 for specific performance in which the present responder plaintiff has already been proceeded ex parte. It is claimed that the petitioner defendant had been educated upto the 6th 7th class and was beguiled into signing papers which are now being claimed to be registered Lease Deeds. The petitioner defendant has been in possession uninterruptedly since 2005 and had paid Rs.3 lakhs out of a consideration of Rs.4 lakhs for the suit property. In the circumstances the petitioner defendant should be allowed to examine the witness. CM(M) 462 2020 5. Mr. Satish Sharma learned counsel for the respondent plaintiff however contended that there were three registered Lease Deeds which established that he was the landlord and the petitioner defendant the tenant in the suit premises. In contrast on the basis of an unregistered receipt the petitioner defendant was claiming ownership of the premises. The respondent plaintiff had submitted contemporaneous documents dating to 2005 which the expert did not find to be sufficient for comparison. That was not the fault of the respondent plaintiff. Learned counsel submitted that there were no other documents of that period available with him. The learned Trial Court rightly rejected the applications and the present petition was also liable to be dismissed. According to the learned counsel for the respondent plaintiff the suit was liable to be decreed straightaway in his favour. 6. The digital copies of the Trial Court Records have been attached to the E file of this petition. The order sheets are relevant in determining whether the impugned order suffers from some error. It is to be noted that on 22nd December 2018 the learned counsel for the petitioner defendant informed the court that only two witnesses were to be examined on his behalf. DW 1 was examined on that day. DW 2 was examined on 21st January 2019. On that day on an application being moved in this behalf by him the petitioner defendant was permitted to examine one Gaurav Lamba. But on 22nd March 2019 that witness was dropped by the learned counsel for the petitioner defendant. A perusal of the application under Section 151 CPC which was also for summoning of witness makes no disclosure of who was the witness sought to be examined. CM(M) 462 2020 There is no such disclosure before this Court either. So the rejection of that part of the prayer seems quite justified. 7. As regards the prayer for directions to the respondent plaintiff to produce more documents for comparison there is no merit in the same. The learned Trial Court had allowed vide orders dated 22nd December 2018 the application moved by the petitioner defendant under Section 45 of the Evidence Act 1872. On 8th February 2019 the respondent plaintiff had given his specimen signatures in the Court and had handed over the original Partnership Deed bearing his signatures which were then forwarded to the FSL for comparison. If these were found insufficient to come to any conclusion there would be no purpose in sending other documents even if now available with the respondent plaintiff at this distant point in time for further comparison. 8. The learned Trial Court was right in observing that expert evidence is merely an opinion. The court is not precluded from making a comparison of its own if so required to come to a conclusion. Therefore while it is true that the learned Trial Court could have refrained from commenting on the evidentiary value of the receipt the same appears to be apropos to the arguments submitted before it. Nevertheless it is apparent that it has not taken a final view as the impugned order records that the evidentiary value of the receipt would be seen as per law and the evidence already recorded. This Court refrains from commenting on the merits of the case even though the learned counsel have touched upon it in the course of their submissions and judgements relied on behalf of the respondent plaintiff. CM(M) 462 2020 9. There is no merit in the present petition. The same is accordingly dismissed along with the pending application. 10. The judgment be uploaded on the website forthwith. JUDGE AUGUST 10 2021 manjeet 

Summary: The court is not bound by the evidentiary value of a particular evidence. Such expert evidence simply adds to support the conclusion arrived at by the judges. The court is not precluded from making a comparison of its own, if so required, to come to a conclusion. This was held by Hon’ble Justice Asha Menon in the case of Ashok Kumar Malhotra Vs. Sunil Tuli [CM (M) 462/2020, CM APPL.23147/2020 (by the petitioner u/S 151 CPC for ad-interim ex-parte stay)] on the 10th of August before the Hon’ble High Court of Delhi At New Delhi. The brief facts of the case are, the respondent had filed the suit for possession, permanent injunction and recovery of arrears of rent and mesne profits/damages against the petitioner. The trial was at the stage of defendant’s evidence, the respondent having led his evidence, when the petitioner moved an application seeking comparison of the signatures on a receipt dated 4th September, 2005 with the admitted contemporaneous signatures of the respondent. That application was allowed vide orders of the learned Trial Court dated 22nd December, 2018. The defendant’s evidence was closed on 22nd March, 2019 and the FSL report was waited for on 27th April, 2019. The FSL report was inconclusive and sought more documents for comparison. The application under Section 151 CPC moved for re-opening defendant’s evidence was dismissed as was the request for directions to the respondent to submit more documents for effective comparison. This was dismissed by the trial court. Aggrieved by this, the petitioner has filed the present petition. The counsel for the petitioner submits that the learned Trial Court had discussed the entire merits of the defence raised by him due to which the petitioner has been greatly prejudiced. Particularly, as he had filed CS No.358/2020 for specific performance, in which the present respondent has already been proceeded ex parte. It is claimed that the petitioner had been educated up to the 6th/7th class and was beguiled into signing papers, which are now being claimed to be registered Lease Deeds. The petitioner has been in possession uninterruptedly since 2005 and had paid Rs.3 lakhs out of a consideration of Rs.4 lakhs for the suit property. In the circumstances, the petitioner should be allowed to examine the witness. The counsel for the respondent however submitted that, there were three registered Lease Deeds which established that he was the landlord and the petitioner the tenant, in the suit premises. In contrast, on the basis of an unregistered receipt, the petitioner was claiming ownership of the premises. The respondent had submitted contemporaneous documents dating to 2005, which the expert did not find to be sufficient for comparison. That was not the fault of the respondent. Learned counsel submitted that there were no other documents of that period available with him. The learned Trial Court rightly rejected the applications and the present petition was also liable to be dismissed.