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2009 DIGILAW 1632 (PNJ)

Subhash Singh v. Jatinder Singh

2009-09-14

SABINA

body2009
JUDGMENT Sabina, J.:- Vide this revision petition, filed under Article 227 of the Constitution of India, the petitioners have challenged the orders dated 11.5.2005 and 27.1.2005 (Annexures P-1 and P-2 respectively) passed by the Civil Judge (Jr.Division), Panchkula. 2. Plaintiffs Shamsher Singh and others filed a suit for declaration to the effect that they were absolute owners in possession of the property in dispute and the registered sale deed dated 14.7.1993 executed by defendants No. 1 and 2 in favour of defendants No. 3 to 5 was illegal, null and void. Notice of the suit was issued to the defendants. 3. After completion of the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiffs are the owner in possession of the disputed Bara, as alleged in plaint ? OPP 2. If issue No.1 is proved in affirmative, whether the sale deed dated 14.7.2003 executed by the defendants No. 1 and 2 in favour of the defendants No.3 to 5 is illegal and null and void? OPP 3. Whether the present suit is not maintainable in the present form? OPD 4. Whether the plaintiffs have no locus-standi to file the present suit? OPD 5. Relief.” 4. After the close of the defendants’ evidence, the case was listed for plaintiffs’ rebuttal evidence and arguments. An application was moved by the plaintiffs for permission to take photographs of the disputed signatures on the sale deed dated 14.7.1993 Ex.DW-3/A, written statement of defendant No.2, vakalatnama of defendant No.2, statement of PW/4 dated 3.10.2000, Ex.PW4/2, which were thumb marked by Jai Narain and documents Ex.D/4, statement of DW-4 dated 15.10.2004, cross-examination of DW 4 dated 10.12.2004, Ex.P/5, which was signed by Mahipal through the handwriting expert for comparison. The contents of the application read as under:- Sub: Application on behalf of the plaintiffs for permission to take photograph of disputed signatures n documents nmely Sale Deed dated 15.07.1993 Ex,DW3/A, E.S. Of Def. No.2, Vakalatnama of Deft. No.2, statement of PW4 dated 03.10.2000 and Ex.PW4/2 which bears thumb impressions of Jai Narain And Documents Ex.D4, statement of DW4 dated 15,10,2004, cross of DW4 dated 10.12.2004, E.P/5 which bears the signatures of Mahipal, through Handwriting expert Ms. Jassi Anand for comparison. Sir, It is submitted as under:- 1. No.2, Vakalatnama of Deft. No.2, statement of PW4 dated 03.10.2000 and Ex.PW4/2 which bears thumb impressions of Jai Narain And Documents Ex.D4, statement of DW4 dated 15,10,2004, cross of DW4 dated 10.12.2004, E.P/5 which bears the signatures of Mahipal, through Handwriting expert Ms. Jassi Anand for comparison. Sir, It is submitted as under:- 1. That in the above titled suit the question of genuineness has arises about thumb impression of Jai Narain and Mahipal has arisen for which plaintiffs have engaged handwriting expert Ms.Jassi Anand. For this purposes photograph have to be taken of the documents mentioned above. It is therefore, prayed that the handwriting expert Ms.Jassi Anand may be allowed to take the photograph of the documents mentioned above.” 5. The said application was allowed as it was not opposed by counsel for the defendants vide order dated 27.1.2005. The handwriting expert submitted her report on 10.3.2005 and a copy of the same was supplied to the defendants. An adjournment was taken by the counsel for the defendants to enable them to crossexamine the expert. The case was adjourned from time to time for cross-examination of the expert. Thereafter, an application was filed by the defendants under Order 18 Rule 3 of the Code of Civil Procedure for dis-allowing the plaintiffs from adducing the evidence in rebuttal. Vide the impugned order dated 11.5.2005, the application moved by the defendants was dismissed. Hence, the present revision petition. 6. Learned counsel for the petitioners has submitted that the plaintiffs could be allowed to lead additional evidence only qua those issues, which were to be proved by the defendants in affirmative. So far as issues No.1 and 2 are concerned, the burden of proof lay on the plaintiffs and qua issues No.3 and 4, the burden of proof lay on the defendants. The defendants had not led any evidence on issues No.3 and 4 and in these circumstances, the plaintiffs could not be allowed to lead rebuttal evidence qua issue No.1. 7. Learned counsel for the respondents, on the other hand, has submitted that the application for allowing the expert to take photographs of the relevant documents was allowed as the same was not opposed by the defendants. After submission of the report of the expert, the case has been adjourned from time to time for cross-examination of the expert. 7. Learned counsel for the respondents, on the other hand, has submitted that the application for allowing the expert to take photographs of the relevant documents was allowed as the same was not opposed by the defendants. After submission of the report of the expert, the case has been adjourned from time to time for cross-examination of the expert. The original sale deed in question was placed on record by the defendants in their evidence and hence, it necessitated that the signatures/thumb impressions on the sale deed be got compared from handwriting expert to get an opinion regarding its genuineness. 8. After hearing learned counsel for the parties, I am of the opinion that the instant petition deserves dismissal. 9. There is no dispute regarding the legal proposition that the plaintiffs can lead rebuttal evidence only qua those issues, regarding which the burden of proof is on the defendants, but the facts of the present case are peculiar. The original sale deed has been tendered in evidence by the defendants. Thereafter, the application moved by the plaintiffs for permission to take photographs of the disputed signatures/thumb impressions on the sale deed and other documents was allowed. The said application was not opposed by the defendants. Thereafter the expert has submitted her report and the case has been adjourned on three dates for the crossexamination of the expert. Thereafter, the defendants moved the application that the plaintiffs be dis-allowed from leading rebuttal evidence. In case the examination of expert is allowed then the lis between the parties would be disposed of on merits. Moreover, when the application moved by the plaintiffs seeking permission to take the photographs of the disputed signatures and other documents by handwriting expert for comparison was allowed being un-opposed, the learned trial Court rightly held that the application moved by the defendants for dis-allowing the plaintiffs for examining the expert in rebuttal evidence was liable to be dismissed. 10. In the factual matrix of the present case, the impugned order does not suffer from any material irregularity and illegality warranting interference by this Court. Accordingly, this petition is dismissed. ----------