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2005 DIGILAW 113 (PNJ)

Kashmiri Lal Goyal v. Sq. Ld. Gurdial Singh

2005-01-20

HEMANT GUPTA

body2005
Judgment Hemant Gupta, J. 1. The defendant is in revision petition aggrieved against the order passed by the learned trial Court on 8.4.2004 whereby the defendant was not permitted to examine the handwriting and document expert to rebut the evidence led by the plaintiff in respect of receipts regarding payment of rent. 2. The plaintiff-respondent has filed a suit for recovery of arrears of rent. In the said suit, the plaintiff pleaded payment of Rs. 1,20,000/- by way of cheques and cash and that the defendant has duly been issued receipts in regard to the amount which he has paid to plaintiff No. 1 in cash. The said payment was not denied by the defendant in the written statement. The plaintiff did not produce any of the receipts in support of payment of Rs. 1,20,000/- by different receipts as pleaded in the plaint. Such receipts were put to the defendant when he appeared as DW1. The defendant denied that such receipts bear his signatures. 3. Since the defendant denied the signatures on such receipts, the plaintiff moved an application for permission to lead rebuttal evidence which was allowed by the learned trial Court on 29.08.2002. Thereafter, the plaintiff examined PW-6 Ms. Jassy Anand, handwriting expert. At that stage, the defendant-petitioner moved an application for granting permission to lead evidence to rebut the evidence of handwriting expert produced by the plaintiff. The learned trial Court declined such application on the ground that the defendant has no right to lead rebuttal evidence to the rebuttal led by the plaintiff. 4. Learned counsel for the petitioner has vehemently argued that the receipts put to the defendant in cross-examination were not produced in the evidence by the plaintiff. Such receipts were not produced on record by the plaintiff at any earlier stage of the proceedings. Such receipts were produced for the first time during the course of cross-examination of the defendant. The plaintiff was granted permission to examine the handwriting expert in rebuttal. But keeping in view the fact that defendant was taken by surprise when receipts were produced in cross-examination for the first time, the defendant has a right to lead evidence so produced by the plaintiff. As per plaintiff, the receipts are in part payment of rent whereas, as per defendant, there was no such stipulation in relation to the receipts when payment of Rs. 1,20,000/- was made. 5. As per plaintiff, the receipts are in part payment of rent whereas, as per defendant, there was no such stipulation in relation to the receipts when payment of Rs. 1,20,000/- was made. 5. 1 have head learned counsel for the parties at great length and found that the defendant has made out a case for permission to lead evidence to rebut the evidence led by the plaintiff. The controversial receipts having not been produced by the plaintiff before cross-examination of the defendant, the defendant has no opportunity to anticipate the evidence that may be required, to rebut the evidence of the plaintiff led in affirmative. There is no dispute about the proposition that the defendant is not entitled to lead rebuttal to rebuttal evidence but, keeping in view the facts of the present case, the defendant is justified to seek production of evidence. Such evidence may be called additional evidence or evidence to effectively decide the controversy between the parties. The fact remains that the defendant cannot be put in disadvantageous position since receipts were not produced earlier. The controversial receipts were not produced either in evidence of the plaintiff or on the record at any point of time before the defendant was in the witness-box. 6. Consequently, 1 find that the order passed by the learned trial Court dated 8.4.2004 suffers from patent illegality or material irregularity causing material injustice to the petitioner and, thus, the revision petition is allowed and order dated 8.4.2004 is set aside. The defendant is permitted to produce handwriting expert on one date to be fixed by the learned trial Court. 7. The parties through their counsel are directed to appear before the learned trial Court on 7.2.2006 for further proceedings in accordance with law.