Ashok Kumar vs Dalip Kumar

L.N. Mittal, J.—By way of instant revision petition filed under Article 227 of the Constitution of India, defendant Ashok Kumar has assailed order dated 14.05.2010 Annexure P-3 passed by learned Civil Judge (Junior Division), Moga thereby allowing application Annexure P-1 moved by respondent-plaintiff Dalip Kumar for examining handwriting expert in rebuttal evidence or in the alternative by way of additional evidence. Respondent-plaintiff has filed suit against defendant-petitioner for recovery of money on the basis of pronote and receipt. The defendant alleged the pronote and receipt to be forged and fabricated document. The plaintiff led his affirmative evidence. The defendant in his evidence examined handwriting expert as witness, besides leading other evidence. The plaintiff by moving application Annexure P-1 wanted to examine handwriting expert in rebuttal of handwriting expert examined by defendant or in the alternative by additional evidence.

The application was resisted by defendant by filing reply Annexure P-2 alleging that the plaintiff could examine the handwriting expert in affirmative evidence and not by way of rebuttal.

Learned trial court vide impugned order Annexure P-3 allowed plaintiff''s application Annexure P-1 and permitted the plaintiff to examine the handwriting expert as witness in rebuttal evidence. The said order is under challenge in this revision petition.

I have heard counsel for the parties and perused the case file. Counsel for the petitioner contended that the plaintiff could examine the handwriting expert in affirmative evidence and not in rebuttal evidence. However, counsel for respondent-plaintiff contended that issue No. 4 relates to the pronote and receipt being forged and fabricated document and without consideration and onus of the said issue is on defendant and, therefore, plaintiff has right to examine the handwriting expert in rebuttal evidence on issue No. 4.

I have carefully considered the rival contentions. Issue No. 4 itself is by way of rebuttal of issue No. 1 onus of which is on the plaintiff to prove that he is entitled to recovery of money on the basis of pronote and receipt in question. Consequently, the plaintiff was required to prove pronote and receipt in affirmative and, therefore, the plaintiff should have examined the handwriting expert in affirmative evidence and not in rebuttal evidence.

However, the matter does not end here. Plaintiff in his application Annexure P-1 also made alternative prayer for examining the handwriting expert by way of additional evidence. The said prayer can be allowed on payment of cost. The defendant has himself examined handwriting expert as witness. Consequently the plaintiff should also be allowed to examine the handwriting expert by way of additional evidence on payment of cost. For the reasons aforesaid, the instant revision petition is disposed of by modifying impugned order Annexure P-3 of the trial Court and by permitting the plaintiff-respondent to examine handwriting expert as witness by way of additional evidence, subject to payment of Rs. 3,000/- as cost precedent.