Joginder Singh vs BaruMal

A.L. Bahri, J.—This revision petition is directed against order dated September 1,1989, passed by the Additional Senior Sub Judge, Barnala, whereby application for producing additional evidence filed on behalf of Baru Mal respondent (plaintiff) was allowed and the plaintiff was allowed to produce Handwriting Expert to rebut the testimony of another Handwriting Expert which as produced by the defendant. This was done on payment of Rs.300/-as costs.

As per facts given in the order of the trial Court, Baru Mal filed a suit for recovery of Rs.26,500/- on the basis of a pronote and receipt. He led evidence in affirmative and the defendant also led his evidence. The defendant produced one Document Expert. The plaintiff filed an application to produce his Document Expert in rebuttal which application as declined on August 3, 1989. It was thereafter that the plaintiff filed the present application for producing additional evidence under Order 18 Rule 17-A of the Code of Civil Procedure. In spite of service no body has put in appearance. Even no behalf of the petitioner nobody has put in appearance today.

The issue framed in the case, as reproduced in the grounds of revision reads as under: -

"Whether the defendant executed the Pronote/Receipt dated 22.12.1984 in favour of the plaintiff ? OPP"

In view of the nature of the issue framed in the suit, as above, it is clear that the burden of proof was rightly placed on the plaintiff and if the plaintiff had so chosen, he could have produced the Expert. It was on that account that the trial Court did not permit the plaintiff to produce the Expert in rebuttal. Order 18 Rule 17-A reads as under: -

"Where a party satisfies the Court that after the exercise of due diligence any evidence was within his knowledge or could be produced by him at the time when that party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just."

The question for consideration is as to whether the plaintiff, after exercise of due diligence, could produce his Expert when he opened the evidence in the trial Court. The answer would be obviously in the affirmative. If that is so, provisions of Order 18 Rule 17-A of the C.P.C. would not be attracted merely because the plaintiff afterwards got the necessary photographs taken by the Expert, it will not bestow any right on the plaintiff to produce any such evidence. The trial Court was, thus, in error in allowing the application for producing additional evidence. The order of the trial Court is set aside while accepting the revision petition. No order as to costs.