Jaswant Singh vs Shish Pal

Sat Pal, J.—This petition has been directed against the order dated 26.2.1997 passed by the Additional Civil Judge (SD) Sunam. By this order the learned Additional Civil Judge has dismissed the application filed by the plaintiff/petitioner under Order 18 Rule 17-A CPC for additional evidence. It may be relevant to note here that the additional evidence sought to be produced by the plaintiff is by way of examination of document expert with regard to the affidavit dated 14.5.1994 which has been proved and exhibited as Ex.D-5 on 17.4.1996.

Mr. Puri, the learned counsel appearing on behalf of the respondents submits that the execution of affidavit dated 14.5.1994 which bears the thumb impression of the petitioner/plaintiff and his father Sadhu Singh was pleaded in the written statement which was filed on 16.1.1995. He, therefore, contends that since the plaintiff was having complete knowledge about the aforesaid affidavit when he had examined his evidence, he cannot be permitted now to examine any witness by way of additional evidence. He further, submits that in rebuttal the plaintiff/petitioner cannot be permitted to examine any witness in support of an issue, the burden of which lies on the defendant. In support of his submissions, the learned counsel has placed reliance on a judgment of this court in Joginder Singh v. Baru Mal 1990(2) S.L.J. 775.

After hearing the learned counsel for the parties and having perused the impugned order, I am of the opinion that the impugned order dated 26.2.1997 can not be sustained and has to be set aside. It is true that the execution of the affidavit dated 14.5.1994 had been pleaded by the respondent/defendant in their written statement but the said affidavit was not annexed alongwith the written statement and the same was not on record before the learned trial Court when the entire evidence of the plaintiff was examined. The said affidavit was brought on record only on 17.4.1996 as stated herein above. Thus the stage at which the plaintiff could examine the handwriting expert to prove that the said affidavit was not executed by the plaintiff came only after the said affidavit was brought on record. From the paper book, I find that in fact the document handwriting expert was present before the learned trial Court on 2.12.1996 but the plaintiff was not permitted to examine that witness on the ground that the defendant did not press issue No. 6 which reads.

"Whether the plaintiff is estopped to file the suit by his act and conduct?"

On a specific question from the Court as to whether the defendant shall rely on the affidavit Ex.D-5, the learned counsel for the respondents submitted that the respondents-defendants shall rely on this affidavit. In view of these facts I am of the opinion that the petitioner/plaintiff has to be given an opportunity to examine the document expert.

In view of the above discussion, the petition is allowed and the impugned order dated 26.2.1997 is set aside. It is, however, made clear that the petitioner/plaintiff will be given only one opportunity to examine the document expert at his own risk and beyond this one opportunity, no further opportunity will be given to the petitioner for this purpose. It is also made clear that the respondents shall also be given only one opportunity to examine their document expert at their own risk. With this order the petition stands disposed of.