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2011 DIGILAW 2198 (PNJ)

Anil Kumar Nagpal v. Amarjit Singh

2011-12-12

VIJENDER SINGH MALIK

body2011
JUDGMENT Vijender Singh Malik, J 1. Defendants no. 2 and 3 are before me in this revision brought under the provisions of Article 227 of the Constitution of India for setting aside the order dated 22.11.2011 (Annexure P3) passed by learned Additional Civil Judge (Senior Division), Baba Bakala, whereby the application filed by the petitioners seeking permission to take photographs of the signatures of plaintiff -Amarjit Singh appearing on the power of attorney, plaint, affidavit submitted as examination-in-chief and the affidavit (Ex. D2) by the handwriting expert and to allow the handwriting expert to compare the signatures taken from the above mentioned documents and to give report and depose in the court in support thereof, has been dismissed. 2. Amarjit Singh, respondent No.1 filed a suit for declaration to the effect that he is owner of a residential house situated in the abadi of Village Budha Theh (Beas), Tehsil Baba Bakala, District Amritsar, properly detailed in the headnote of the plaint and the sale deed dated 23.7.2001 allegedly executed by defendant No.1 in favour of defendants No. 2 and 3 is illegal, null and void and forged and fabricated document, which is not binding on the rights of the plaintiff. Relief of permanent injunction is also sought restraining defendants No. 2 and 3 from alienating the house in question in any manner. 3. After the suit was fixed for rebuttal evidence, if any, and arguments, the defendants-petitioners filed the application for the above stated relief. They have claimed in the application that defendant No.1, Jagir Kaur sold the suit property vide the impugned sale deed. Amarjit Singh filed an affidavit (Ex. D2) stating that the sale deed is executed with his consent. However, when he appeared as his own witness, he has denied his consent to have been there in executing the sale deed. It is claimed that if permission is given for comparison, it will bring to light the facts while the plaintiff would not be harmed in any manner. 4. The plaintiff has opposed the application claiming that the evidence of the defendants has been closed by order of the court dated 3.5.2011. According to him, the defendants then filed application for additional evidence, which has been declined. 4. The plaintiff has opposed the application claiming that the evidence of the defendants has been closed by order of the court dated 3.5.2011. According to him, the defendants then filed application for additional evidence, which has been declined. It is further claimed that the defendants then filed an application under Order 14 Rule 5 CPC which was allowed and the additional issue was framed with regard to valuation of the suit for the purposes of court fee and jurisdiction. It is, therefore, claimed that the defendants-applicants have no right to lead any evidence at that stage. 5. Hearing learned counsel for the parties, learned trial court dismissed the application vide order dated 22.11.2011. 6. I have heard Mr.Balbir Singh Jaswal, learned counsel for the petitioner and have gone through the record carefully. 7. Learned counsel for the petitioners has submitted the factual aspect which is sought to be proved/disproved by the petitioners by leading the evidence of handwriting expert, for which permission was sought for the expert to take photographs of the admitted and disputed signatures. According to him, defendants No. 2 and 3 were leading their evidence and defendant No.1 had been proceeded against ex-parte. According to him, after that defendant No.1 applied for setting aside the ex-parte proceedings and the same was allowed. He has submitted that thereafter the evidence, which was being led was of defendant No.1 and not of the petitioners. He has further submitted that the evidence closed vide order dated 3.5.2011 is of defendant No.1 and not of defendants No.2 and 3. According to him, defendants No.2 and 3 are still leading their evidence and they have a right to lead evidence of handwriting expert. 8. Learned counsel for the petitioner has further submitted that in the alternative, a fresh issue has been framed by learned trial court and defendants-petitioners are entitled to lead this evidence on that issue. 9. It is true that before the ex-parte proceedings against defendant No.1 had been set aside, defendants No. 2 and 3 were leading their evidence. The ex-parte proceedings against defendant No.1 were set-aside. However, it has not become evident from the record that the evidence thereafter was led by defendant No.1 alone and the court had asked defendants No.2 and 3 to wait till evidence of defendant No.1 was over. The ex-parte proceedings against defendant No.1 were set-aside. However, it has not become evident from the record that the evidence thereafter was led by defendant No.1 alone and the court had asked defendants No.2 and 3 to wait till evidence of defendant No.1 was over. The adjournments had been granted to all the defendants for their evidence and on 3.5.2011, evidence of all the defendants had been closed. 10. If the evidence closed on 3.5.2011 was of defendant No.1 only and that defendant No.1 alone was leading her evidence at that time, defendants No.2 and 3 should have filed an application inviting the attention of learned trial court to this effect and seeking further opportunity to them to lead their evidence. It was not done by them. Even an application was filed for additional evidence, but the same was dismissed. So, it cannot be said that the evidence of defendants No. 2 and 3 is still continuing and they can lead this evidence without any objection from the court or the plaintiff. 11. So far as the additional issue is concerned, it is regarding proper valuation of the suit for the purposes of court fee and jurisdiction. The evidence sought to be led by the petitioner is regarding some admission of Amarjit Singh and his consent in the execution of the sale deed by Jagir Kaur, defendant No.1 and has no relationship with the question of valuation of the suit for the purposes of court fee and jurisdiction. 12. For these reasons, the application of the petitioners for additional evidence having been already dismissed, they were not entitled to lead any evidence on the additional issue. The prayer of the petitioners for permission to examine the handwriting expert and his taking photographs was, therefore, rightly declined. The revision petition is, consequently, found to have no merit and is dismissed. Petition dismissed.