JUDGMENT Rakesh Tiwari, J.
1. The petitioner has instituted the instant writ petition for a writ in the nature of certiorari quashing the impugned order dated 30.5.2001, contained in Annexure 1 to the writ petition, passed by the District Judge Chandauli- respondent No. 1 as well as order dated 8.5.2001, contained in Annexure 2 to the writ petition passed by Civil Judge, (Junior Division) Chandauli- respondent No. 2 and has also prayed for other consequential reliefs.
2. Briefly stated, the facts of the case are that the petitioner filed suit No. 90 of 1994 on 3.2.1994 before the then Munsif Chandauli, district Varanasi (now district Chandauli) for a decree of cancellation of alleged registered Gift-deed dated 22.11.1983 which was allegedly executed by Smt. Kastoora Devi in favour of Ram Awadh, Ram Prasad, Ram Pratap, Vijay Ram and Trilochan- the defendant Nos. 1 to 5. The subject matter of the disputed property is plot Nos. 363, 380-A and 66 having area of 2.95 acres. The petitioner alleged that Ram Tahal died on 26.1.1965 and on his death, a registered family settlement was entered into between petitioner and Smt. Kastoora Devi, widow of late Ram Tahal and her daughters. In pursuance of the aforesaid family settlement, a sum of Rs. 6000/- each was paid to all the four daughters of Smt. Kastoora Devi and they relinquished their claim in the property of Ram Tahal. After the death of Ram Tahal, Smt. Kastoora Devi executed a will on 29.8.1983 in favour of the petitioner. Subsequently, she executed a registered will on 31.7.1987 in favour of the petitioner. Smt. Kastoora Devi remained owner in possession of the property in dispute till her death and the petitioner claimed that he succeeded to the property left by Ram Tahal and his widow-Smt. Kastoora Devi on the basis of the aforesaid two wills. Smt. Kastoora Devi also died on 4.8.1987.
3. The petitioner came to know that a farji and fictitious gift deed dated 22.11.1983 allegedly executed by late Smt. Kastoora Devi in their favour was being set up by the defendant Nos. 1 to 5. He inspected the record on 2.1.1994 and applied for copy of the said gi ft deed on 5.1.1994. It was made available to him on 1.2.1994. The aforesaid suit was thereafter filed on 3.2.1994 for cancellation of the alleged will dated 22.11.1983.
4. The suit was contested by the defendant Nos. 1,2,3,5,6 and 8 and Harpal Pandey the substituted defendant No. 7/1,7/2 and 7/3 by filing separate written statements and they denied the plaint allegations. The petitioner moved an application in the suit before the concerned court on 19.5.2000 (paper No. 52-C) for expert opinion of the thumb impression of Smt. Kastoori Devi on the alleged gift deed dated 22.11.1983. He also moved an application on 4.8.2000 for summoning the original file of Case No. 196 of 1984- Smt. Kastoora Devi v. Chekhur and Ors. which was in regard to the dispute over property situated in village Jamdeeh, Pargana Barhawal District Varanasi and decided by Sub Divisional Officer, Chandauli on 6.5.1986. In that case, the admitted thumb impression of Smt. Kastoora Devi was available. The trial court allowed the application of the petitioner on 19.5.2000 for expert opinion for comparision of the admitted thumb impressions of Kastoora Devi on record of case No. 196 of 1984 with her thumb impression on the gift deed dated 23.11.1983. Another application of the petitioner for summoning record of case No. 196 of 1984 - Smt. Kastoora Devi v. Chekhur and Ors. was also allowed by the trial court vide order dated 18.8.2000.
5. In the meantime, during pendency of the aforesaid case, the defendants persuaded the petitioner to compromise. On the joint request of the parties, the case was adjourned and next date in the case was fixed as 22.9.2000. The case was thereafter fixed on 22.9.2000 and 5.10.2000. On this date too the parties except defendant No. 6 expressed desire to compromise as all the defendants except Trilochan defendant No. 6 agreed to compromise the dispute. The case was thereafter fixed for plaintiff's evidence on 18.10.2000. On that date only defendant No. 1 was present and the case proceeded against defendant Nos. 3 to 8 fixing 30.10.2000 as next date. The plaintiff-petitioner closed his evidence as talks for compromise were going on between the parties and moved application dated 30.10.2000 in this regard which was kept on record. Defendant No. 6 was examined in part on 7.12.2000. Thereafter, application was moved by the plaintiff on 2.3.2001 (paper No. 71-C) bringing to the notice of the court that the suit had been filed for cancellation of the gift deed and that the plaintiff had already filed application dated 4.8.2000 which had been allowed and file of suit No. 196 of 1984 - Smt. Kastoora Devi v. Chekhur and Ors. filed under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act containing the admitted thumb impression of Smt. Kastoora Devi has been received in the court and as such, for comparison of the admitted thumb impressions of Kastoora Devi on record of case No. 196 of 1984 with her thumb impression on the gift deed dated 23.11.1983 hand writing expert be summoned and examined.
6. Defendant No. 2-Ram Prasad filed objections to the application dated 2.3.2001. The application dated 2.3.2001 filed by the petitioner was rejected by respondent No. 2 by order dated 8.5.2001. Aggrieved the petitioner instituted Civil Revision No. 34 of 2001 Gauri shankar v. Ram Avadh and Ors. before the District Judge Chandauli against the aforesaid order dated 8.5.2001 which too has been rejected by the respondent No. 1 summarily by order dated 30.5.2001 as not maintainable on the ground that that the revision had been filed against an interlocutory order and hence this petition.
7. It is submitted by the counsel for the petitioner that the gift deed dated 23.11.1983 was set up by the respondent Ram Awadh and others and alleged to have been executed by Smt. Kastoora Devi in favour of Ram Awadh and other defendants is farji and fictitious and it was never executed by Smt. Kastoora Devi, therefore, the expert evidence was vital in the present case by bringing the controversy at rest. It is submitted that the courts below have wrongly and illegally rejected the application of the petitioner dated 2.3.2001 and deprived him of his right to substantial justice by adducing evidence for comparison of the thumb impression of Smt. Kastoora Devi on the admitted and the dispute gift deed 22.11.1983 and to establish his case as pleaded in the plaint. It is urged that the courts below have ignored the principle of law laid down by the High Court in Gajar v. Deputy director of Consolidation and Ors. - 1997 (88) R.D-411 which is as under :-
" This is very old matter and the question involved is in respect of order dated 9.9.1970 that the revision could not be dismissed merely because a certified copy of order of Consolidation Officer was not filed. As the matter is too old to be sent back for determining as to whether thumb impression are of petitioner or not, relying upon the principle that liberal view be taken inrestoring case therefore, in the interest of justice, the order dated 9.9.1970 is quashed."
8. It is next contended that the trial court has wrongly and illegally rejected application of the petitioner dated 2.3.2001 on erroneous assumption that the record of Case No. 196 of 1984 has not been summoned and was attached with the file of suit No. 90 of 1994 filed by the petitioner as record of case under Section 229-B of the U.P. Z.A and L.R. Act was already summoned and attached with the record of the present suit No. 90 of 1994. The order passed by the respondent No. 2 is against the material on record, as such perverse. In view of the facts of the case, it cannot be said that the second application filed by the petitioner for expert evidence cannot be allowed as all along there was talk and hope of compromise between the parties.
9. It is stated that under the provisions of Order 16 Rule 2 of the Civil Procedure Code, read with Order 18 Rule 4 of Civil Procedure Code and Section 45 of Indian Evidence Act, it is well settled principle of law that the plaintiff has liberty to examine witness, including expert evidence and he cannot be deprived of his right to adduce expert evidence.
10. It is further submitted that the impugned order has been passed ignoring the second proviso to Section 115 of the Civil Procedure Code as amended in the State of U.P. which provides that a revision against an
11. Interlocutory order may also be entertained, if the court is of the view that if the order is allowed to stand it can occasion failure of justice and cause irreparable injury to the party against whom the order is made. In the present case, the plaintiff-petitioner has been deprived of his right to adduce expert evidence, the most vital evidence to examine the expert.
12. By application 71 -C, the plaintiff prayed for calling the file of case No. 196 of 1984 which contains the vakalatnama bearing thumb impression of Kastoora Devi but on 30.10.2000, he filed application that he does not want to examine any more evidence in support of his case. He had already examined one witness and evidence of plaintiff was closed. The court fixed next date for evidence of defendant when this application was filed. The court rejected this application against which revision was filed. The revision was rejected on the ground that order is not revisable.
13. In the present case, plaintiff wants to prove that will dated 31.7.1987 is forged by comparing the same with admitted document, i.e., vakalatnama in another case. He had already filed application for summoning that document and permission to examine expert. The evidence of defendant has not begun and defendant will have ample opportunity to rebut the evidence of plaintiff. If a chance to prove the authenticity of will is not given to the plaintiff he will suffer irreparable loss and great injustice will be caused to him. Hence it is in interest of justice to give a chance to the plaintiff to give further evidence to prove his case.
14. In Gajar v. Deputy director of Consolidation and Ors.-(Supra) it has been held that in case where the order is patently erroneous or where in the interest of advancement of substantial justice an opportunity is required to be given, liberal view is to be taken. In that case also the controversy was of similar nature i.e., whether the application of Gajar Prasad did not bear his signature and petitioner sought for sending his thumb impression before the expert to prove that it was not his thumb impression. In a Full Bench case of Ganga Saran v. State of U.P.-1991 (17) A.L.R.-380 it has been held that where substantial injustice is being caused the High Court under Article 226 of the Constitution can exercise its extraordinary jurisdiction. The duty of the High Court is not only to see that justice is done but also to ensure that injustice is not done to any party. The High Court has power under Article 226 of the Constitution to balance the rights of the parties. If power is not exercised, it would lead to precipitation of grave injustice , which would remain unchecked and uncorrected in absence of interference by the High Court.
15. In this view, the impugned orders dated 8.5.2001 and 31.5.2001 passed by the Civil Judge and District Jude are quashed and direction is issued to afford the plaintiff-petitioner opportunity to produce further oral and documentary evidence to disprove the alleged will dated 31.7.1987 on payment of Rs. 1000/- as costs.
16. The writ petition is allowed with above direction. No order as to costs.