Sukhdta Chits Pvt Ltd & Ors. v. Shrajender Prasad Gupta

1. The petitioners(defendants in Civil Suits No.54/2014 and 115/2014) have filed these two petitions under Article 227 of Constitution of India impugning with the following prayers:-

(i) To set aside the order dated 24.01.2014 passed in CS No.l15/2014

(ii) To set aside the identical order both dated 22.03.2014 passed in CS

(iii) To permitthe petitionersto drop Sh.Syed SarfrazAhmed asa witness inthecivilsuitsand toproduceanotherhandwritingexpertinhisplace.

2. Learned counsel for the petitioners has submitted that the petitioners examined the handwriting experttoprove handwriting onthechequesasthe same was in different handwriting. The details ofthe cheques have been filled by the respondent herein. Sh.Syed Sarfraz Ahmed,the handwriting expert was examined as DW-5 but perusalofhis cross examination revealed that he was not a qualified handwriting finger print expert and doubts have arisen about his qualification to depose as an expert in the matter. The petitioners had filed their report and also an affidavit under bonafide belief that Sh.Syed Sarfraz Ahmad was an expert in the matter and possessed requisite qualification in that regard. However, only during his cross examination it was revealed thathe was nota qualified handwriting expert. Thus, the petitioners wanted to avail the services of another handwriting expert but the learned Trial Court vide impugned orders not only declined the requestofthe petitionersto examine anotherhandwriting expertin place of Sh.Syed Sarfraz Ahmad but even the defence evidence was also closed recording that no DW was present. Further applications seeking review of the said orders have also been dismissed by the learned Trial Court.

3. Learned counsel for the petitioners has submitted that grave injustice has been caused to the petitioners for no fault oftheir own as the petitioners did not know about the qualification ofthe handwriting expert produced as DW-5. It has been further submitted that for failure of the handwriting expert notto appearfor further cross examination,the petitioners cannot be CM(M)383&384of2014 Page2of[5] blamed,hence the impugned orders may be setaside and the petitioners may be permitted to produce another handwriting expert in place of DW-5 Sh.Syed Sarfraz Ahmad.

4. In the instant case, the handwriting expert has been engaged by the petitioners of their own and before availing his services, it was for the petitioners to satisfy themselves about the qualification and expertise ofthe handwriting expert. For completion ofcrossexamination ofthe handwriting expert, the petitioners were required to take necessary steps by depositing the diet money and other expenses and get him summoned. It is only on failure of the witness to appear despite service that the Court may take coercive action to secure the presence ofthe witness.

5. In the impugned orders dated 24.01.2014 there is an observation by the Court that on several occasions this witness has not been brought to the witness box for further cross examination, commenting adversely on the conduct of the witness observing that such conduct of the witness was uncalled for in the background that the witness was brought by the petitioners/defendants before the Court.

6. In fact what the petitioners want at this stage is replacement of the handwriting expert, re-examination of the documents and then examining such handwriting expert as witness. The learned Trial Court has declined this prayer noting that no party can be allowed to retract in this manner.

7. The applications seeking review has already been dismissed as there was no error apparent on the face ofrecord.

8. Proceeding under Article 227 of The Constitution of India is an extraordinary discretionary constitutional remedy to advancejustice and not to thwart it. In the case JaiSingh & Ors.. vs. Municipal Corporation of CM(M)383&384of2014 Page 3of[5] Delhi & Anr. 2011(1)RCJ343(SC),the Apex Court has considered the scope of power of High Court under Article 227 of The Constitution of India. The relevant paragraph ofthe report is extracted as under: '25. Undoubtedly, the High Court has the power to reach injustice whenever, whereverfound. The scope and ambit ofArticle 227ofthe Constitution ofIndia had been discussedin the case ofThe Estralla Rubber v. Dass Estate(P)Ltd.,2001 8SCC97, wherein it was observedasfollows: The scope and ambit ofexercise ofpower andjurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number ofdecisions ofthis Court. The exercise ofpower under this article involves a duty on the High Courtto keep inferior courts andtribunals within the bounds oftheir authority and to see that they do the duty expected or required ofthem in a legal manner. The High court is not vested with any unlimitedprerogative to correct all kinds ofhardship or wrong decisions made within the limited ofthejurisdiction ofthe subordinate courts or tribunals. Exercise of this power and interfering with the orders ofthe courts or tribunals is restrictedto cases of serious dereliction of duty and flagrant violation of fundamentalprinciples oflaw orjustice, where ifthe High Court does notinterfere, agrave injustice remains uncorrected. Itisalso well settled that the High court while acting under this article cannot exercise its power as an appellate court or substitute its ownjudgment in place ofthat ofthe subordinate court to correct an error, which is not apparent on theface ofthe record. The High Court can set aside or ignore the findings offacts ofan inferior court or tribunal, ifthere is no evidence at all tojustify or thefinding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come 4.^ >

9. When the prayer ofthe petitioners is examined in the light ofabove,I find that the learned Trial Court has not committed any error of law by declining the prayer ofthe petitioners to replace the handwriting expert who was under cross examination on the date when DE was closed. Atthe most CM(M)383&384of2014 Page 4of[5] H the petitioners could have requested the learned Trial Court to provide one more opportunity to complete the statement of DW-5 - the handwriting expert. It appearsthat petitioners are notinterested in doing so.

10. Finding no illegality or infirmity in the impugned orders, both the petitions are dismissed.

11. No costs. CM No.7047/2014 in CMIM)No.383/2014 CM No.7049/2014 in CM(M)No.384/2014 Dismissed as infructuous. Or^V-r- MPRATIBHA RANI,J.