Davinder Kumar Goswami and another vs Smt. Parkash Sharma and others

Vijender Singh Malik, J.—Davinder Kumar Goswami and Smt. Anuradha Goswami, defendants No. 1 and 2 have brought this revision petition under the provisions of Article 227 of the Constitution of India for setting aside the order dated 5.9.2011 (Annexure P4) passed by learned Civil Judge (Junior Division), Panipat, whereby the application of the plaintiff, Smt. Parkash Sharma for leading evidence in rebuttal has been allowed.

Smt. Parkash Sharma sought by way of her suit reliefs of declaration, rendition of account and injunction in both permanent and mandatory form against the defendants. She claimed to be an heir of Smt. Sneh Prabha regarding the amounts received by her on the death of her husband Sh. Bishamber Nath Sharma, which were deposited with defendants No. 4 to 13. Defendants No. 1 and 2 besides filing written statement to the claim of Smt. Parkash Sharma had filed a counter claim in which they claimed that Smt. Sneh Prabha, who happened to be sister of defendant No. 1, executed a valid Will on 20.3.2005 in favour of defendant No. 1 in respect of the aforesaid dues. It is in this suit, the plaintiff applied for permission to examine handwriting expert and for that purpose sought permission to allow photographs to be taken of the disputed signatures of Sneh Prabha on the alleged Will as well as her admitted signatures from the documents available on the record. In the said application, it is claimed that the plaintiff had challenged the said Will in her written statement filed to the counter claim of defendants No. 1 and 2 and for this reason, she wanted to examine the handwriting expert.

The application was opposed by defendants No. 1 and 2. They have claimed that the plaintiff has assailed the Will in question as forged one. According to them, she had the right to lead evidence on that issue in her affirmative evidence and she had no right to lead evidence in rebuttal.

Hearing learned counsel for the parties, learned trial court allowed the application vide order dated 5.9.2011 and this order has been challenged by way of this revision petition.

I have heard Mr. Surya Kant Gautam, learned counsel for the petitioners and have gone through the record carefully.

Learned counsel for the petitioners has submitted that the plaintiff has already challenged the Will and has led the entire evidence on the said issue in her affirmative evidence. He has further submitted that while leading evidence in affirmative, she did not examine the expert. He has further submitted that he did not even reserve any right to lead evidence in rebuttal on this question. According to him, second opportunity to examine handwriting expert should not have been given to the plaintiff.

Learned counsel for the petitioners has cited before me a decision of this court in Chakkar Pani Vs. Onkar Nath (1996) PLR 342, where, while discussing the provisions of Order 18 Rules 1 to 3 CPC, it has been held that the plaintiff chose to adduce evidence which could be termed as rebuttal evidence and thus, he had forfeited his right to lead evidence after the conclusion of evidence by the other side.

The claim of defendant No. 1, who is brother of Smt. Sneh Prabha, is based on the Will executed by her. Though, the plaintiff is claimed to have challenged the said Will in her plaint by claiming it as forged one, yet the claim on the basis of the Will is set up by defendant No. 1 in his counter claim. As the said Will is challenged by the plaintiff in her written statement filed to the counter claim, the onus of the issue regarding proof of valid execution of the Will in question by Smt. Sneh Prabha is upon defendant No. 1 and when defendant No. 1 had led evidence on this issue including the examination of handwriting expert, the plaintiff gets a right to lead evidence in rebuttal on that issue. It makes no difference that the plaintiff had initially claimed the Will to be forged one. The onus was on defendant No. 1 to prove validity of this Will and plaintiff has got a right to rebut that evidence. For leading this evidence, the plaintiff was not required to reserve a right to lead evidence in rebuttal while concluding her affirmative evidence.

There is nothing on the record to suggest that the plaintiff had led evidence of the nature of rebuttal evidence while leading her evidence in affirmative. Moreover, as discussed above, it is a case where onus to prove the valid execution of Will was upon defendant No. 1 and no evidence was required to be led by the plaintiff before defendant No. 1 led evidence on that issue. So, it cannot be said that the plaintiff had led evidence of the nature of rebuttal evidence on this issue while leading her evidence in affirmative. Therefore, the ratio of Chakkar Pani''s case (supra) does not stand attracted to the facts of this case.

Keeping in view the aforesaid discussion, I could find no fault with the impugned order. Consequently, the revision petition is found to have no merit and the same is dismissed.