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2011 DIGILAW 264 (PNJ)

Jasbir Singh v. Gurdeep Singh

2011-01-21

RAM CHAND GUPTA

body2011
JUDGMENT Mr. Ram Chand Gupta, J. (Oral) - C.M.No.1687-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.442 of 2011 2. The present revision petition has been filed under Article 227 of the Constitution of India for quashing of orders dated 5.8.2010, Annexure P4, and 16.12.2010, Annexure P7, passed by learned Civil Judge Junior Division, Ludhiana, being erroneous and illegal. 3. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned orders passed by learned trial Court. 4. Facts relevant for the decision of present revision petition are that a suit for possession by way of specific performance of the agreement to sell dated 31.10.2003, regarding the land measuring 9k-6m being 1/6th share out of total land described in the head-note of the plaint, allegedly executed by petitioner-defendant in favour of respondent-plaintiff with consequential relief of permanent injunction restraining the petitioner-defendant from further alienating, selling, gifting the above said land or by way of any means, whatsover, was filed. 5. The suit was contested by the petitioner-defendant by taking the plea that the said agreement is a result of forgery and fraud has been committed upon him and that no such agreement has been executed between them and rather the agreement was falsely prepared in connivance with marginal witnesses and scribe. On the pleadings of the parties, following issues were framed by learned trial Court:- “1. Whether the defendant entered into an agreement to sell the suit land as detailed in the leading of the plaints? OPP 2. Whether the plaintiff is entitled to the specific performance of the agreement to sell dated 31.10.2000? OPP 3. Whether the plaintiff has been ready and willing to execute his part to the contract? OPP 4. Whether the plaintiff is entitled to the injunction as prayed for ? OPP 5. Whether the agreement to sell 31.10.2000 is a forged and fabricated document? OPD 6. Relief.” 6. The evidence was adduced by plaintiff in affirmative. Evidence was also adduced by defendant and the case was fixed for rebuttal evidence by learned trial Court, when impugned order dated 5.8.2010 was passed, which reads as under:- “ No rebuttal evidence is present. Sh. Jaspreet Singh applicant filed power of attorney on behalf of the attorney of plaintiff Gurdeep Singh. The evidence was adduced by plaintiff in affirmative. Evidence was also adduced by defendant and the case was fixed for rebuttal evidence by learned trial Court, when impugned order dated 5.8.2010 was passed, which reads as under:- “ No rebuttal evidence is present. Sh. Jaspreet Singh applicant filed power of attorney on behalf of the attorney of plaintiff Gurdeep Singh. An application for permission to examine the finger print expert and hand writing expert and for permission to take photographs of the disputed signatures and standard signatures of the defendant filed. Heard. In the interest of justice, application is allowed subject to condition that opposite counsel should remain present while examination of the Finger Print expert and Handwriting expert and also filing of photographs. Prior notice to opposite counsel be given. Case be adjourned to 25.8.2010 for rebuttal evidence, if any/arguments.” 7. Another application was filed on behalf of the petitioner-defendant for reviewing the said order, which is Annexure P5. Another application was filed on behalf of the petitioner-defendant for deleting issue No.5. Both the applications were decided together by learned trial Court vide another impugned order dated 16.12.2010, Annexure P7, dismissing the same. 8. So far as prayer of petitioner-defendant for deleting issue no.5 is concerned, the said issue has arisen out of the pleadings of the parties, as specific plea has been taken by the petitioner-defendant that the agreement is a forged one and is a result of fraud committed upon him. Application for deleting the issue was filed at a much belated stage when evidence of both the parties was concluded, hence it cannot be said that any illegality has been committed by learned trial Court in dismissing the said application. 9. So far as the second application filed by petitioner-plaintiff, vide which learned trial Court had allowed respondent-plaintiff to examine the finger print and hand-writing expert in rebuttal, vide impugned order, reproduced above is concerned, the very perusal of the order shows that the said order was passed in the presence of counsel for the petitioner-defendant and no objection was raised at that time on behalf of the petitioner-defendant that respondent-plaintiff was having no right to examine the said witness in rebuttal evidence. The said application is only for reviewing the said order and however, as there was no ground for reviewing the order, the same was also dismissed. 10. The said application is only for reviewing the said order and however, as there was no ground for reviewing the order, the same was also dismissed. 10. It has been contended by learned counsel for the petitioner-defendant that the evidence now sought to be adduced is in affirmative as onus of issue no.1 was on the respondent-plaintiff and hence, the said evidence could not be produced in rebuttal evidence. On the point she has placed reliance upon two judgments rendered by a coordinate Bench of this Court in Mohan Pal Singh and another v. Karampal Singh and another 2010(4) RCR (Civil) 627 and Ms. Mohinder Pal Mohan Lal v. State of Haryana and another 2010(4) RCR (Civil) 767. 11. So far as legal proposition as held in the aforementioned cases is concerned, there is no dispute that if the evidence has been closed without reserving right of rebuttal, plaintiff cannot be allowed to lead evidence in rebuttal, on the issue on which onus of proof was on the plaintiff. However, in the present case, onus of issue no.5 was on petitioner-defendant to prove that agreement is a result of forgery. More-over evidence was closed by respondent-plaintiff only in affirmative and he wanted to adduce evidence in rebuttal to the evidence adduced by petitioner-defendant to prove issue no.5. 12. More-over, as already discussed above, no objection was raised on behalf of the petitioner-defendant, when impugned order dated 5.8.2010 was passed by learned trial Court. No prejudice would also be caused to the petitioner-defendant, if respondent-plaintiff is allowed to examine the finger print and handwriting expert to rebut the contention of petitioner-defendant that agreement to sell is a forged and fabricated document. 13. Law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. 14. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. 14. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned orders or grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. 15. Hence, the present revision petition is hereby dismissed being devoid of any merit. -----------0.K.B.0------------