Jugraj Singh etc. vs Darshan Singh etc.

N.K. Agrawal, J.—These are two revision petitions by the plaintiffs against the orders dated February 4.1998 and March 12.1998 respectively passed by the Additional Civil Judge (Senior Division), Faridkot, whereby their prayer to examine the handwriting expert in evidence has been declined.

The plaintiffs filed a civil suit for declaration to the effect that they are the owners in possession of half share in the suit land. They also prayed for permanent injunction restraining defendants No. 1 and 2 from dispossessing them from the land. The plaintiffs, in their evidence, examined the handwriting expert. They, however, wanted to examine the expert again in their rebuttal evidence. Their prayer to produce that witness by way of additional evidence was declined by the trial Court on February 4, 1998, The plaintiffs again moved an application before the trial Court praying for permission to produce the expert witness by way of rebuttal evidence. That prayer too was declined on March 12, 1993.

The brief facts, as stated in the plaint, are that Inder Singh was the owner of 1/5th share in some agricultural land. After his death, Bhagwan Kaur, defendant No. 2, the widow of the pre-deceased son of Inder Singh, claimed rights on the land on the basis of a Will executed by Inder Singh. The brothers of Inder Singh challenged her rights before a revenue Court. She was held by the Collector as a limited owner only till her life time. Bhagwan Kaur executed a relinquishment deed in favour of certain persons including the plaintiffs and their predecessors. Plaintiffs came to the Civil Court on the basis of the relinquishment deed. The defendants challenged the relinquishment with the plea that it was a sham transaction.

Since the plaintiffs'' rights were based on the relinquishment deed, they produced in evidence one of the attesting witnesses, namely, Sodagar Singh, to prove its execution. They also examined the handwriting expert to prove the thumb-impression of Bhagwan Kaur, The second attesting witness, Harbans Singh, was however, not examined by the plaintiffs but was on the other hand, examined by the defendants. Harbans Singh denied the attestation and his signature on the relinquishment deed. The plaintiffs filed an application before the trial Court seeking permission to take the photographs of the disputed and specimen signatures of the attesting witness. Harbans Singh, which were available on the file, permission was granted. The same handwriting expert, who had earlier examined the thumb-impression of Bhagwan Kaur, examined the signatures of the attesting witness, Harbans Singh, also and gave a report. The plaintiffs filed an application before the trial Court by way of additional evidence though the case was at the stage of rebuttal evidence. That application was dismissed by order dated February 4.1998 They immediately filed another application to examine the handwriting expert in their evidence in rebuttal. That too was dismissed by order dated March 12, 1998.

Learned counsel for the petitioner-plaintiffs has argued that the plaintiffs never knew that Harbans Singh, would deny his signature on the attestation and so they closed their evidence after examining one attesting witness. It had thereafter become necessary to examine the handwriting expert as the second attesting witness denied his signature during the evidence on behalf of the defendants while colluding with the defendants. Plaintiffs filed an application under Order 18, rule 17-A, Civil Procedure Code, but that was rejected on the objection raised by the defendants that the case was at the stage of rebuttal evidence. The plaintiffs, meeting the said objection, then filed another application stating that they maybe permitted to examine the handwriting expert in rebuttal evidence. This too was rejected for no good reason.

The learned counsel for the respondent-defendants has, on the other hand, contended that the plaintiffs had already examined the handwriting expert. They then closed their evidence. Application under Order 18, rule 17-A, was rightly dismissed. The second attesting witness, Harbans Singh, had been summoned by the plaintiffs as their witness but was given up and not examined. Harbans Singh was then produced by the defendants as their witness. The plaintiffs have no right now to examine the handwriting expert.

In Bakhshish Singh @ Bakhshi vs. Tara Singh. 1990(2) P.L.R. 614 it has been held that where the defendant denied his signatures on the promote and the plaintiff wanted to get the comparison of the signatures of the defendant done by the handwriting expert, it should be allowed.

In Punjab Kaur & others vs. Gurcharan Singh & others. 1992(2) P.L.R. 141 similar view has been taken. There also, it was noticed that the case was fixed for rebuttal evidence of the plaintiff. An application for additional evidence was filed by the defendants so as to compare the thumb-impressions of the defendants on the sale deed. It was held that the main defence of the defendants was that the sale deed was a forged document and therefore, the evidence which goes to the root of the case could not be scuttled.

In Ved Parkash vs. Gopal Bansal. 1997(1) PLR 408, a similar matter came up again before this Court and it was held that the Court was right in allowing the prayer of the plaintiff to prove the execution of the affidavit as the document could not be shown to the defendant during his cross-examination.

In Ran Singh (minor) vs. Pirthi & others, 1996(3) PLR 511, it has been held that a party cannot be denied the right to examine any witness on the mere ground that the party could have adduced that evidence at the time when he was adducing affirmative evidence.

Learned counsel for the respondent-defendants has, on the other hand, placed reliance on a decision of this Court in Tara Chand vs. Randeep Singh. 1995(2) RRR 324. It has been held therein that if the plaintiff had some doubt regarding the signatures of the defendant, he must get the same examined at the first instance and the denial of the defendant does not matter much.

From the facts of the present case, it is obvious that the plaintiffs examined an attesting witness during the course of their evidence. The second attesting witness, however, appeared from the side of the defendants and denied his signatures on the attestation of the document. It was at this stage that the plaintiffs wanted the signature of the second attesting witness to be examined by a handwriting expert. In these circumstances, the application of the plaintiffs is found to be on a sound footing. The plaintiffs, while producing their evidence in the affirmative, could not anticipate that the second attesting witness would be produced by the defendants as their witness and that he would deny his attestation on the deed in question. The plaintiffs had no occasion to get the signature examined at that stage by the handwriting expert. Besides, the plaintiffs had been permitted by the trial court to take the photographs of various signatures of the second attesting witness available on the file of the case. The trial court had obviously granted such permission to enable the plaintiffs to get the signatures examined by an expert. Now, by denying the plaintiffs the right to examine the handwriting expert in rebuttal evidence, the trial Court has fallen in error. Once permission was granted to take the photographs of the disputed and the specimen signatures, that exercise should have been carried to its logical end. There is no justification at all in denying the production of the handwriting expert in evidence. Further, the burden to prove some of the issues including an issue to the effect that the relinquishment was a sham transaction was on the defendants. The case was fixed for the plaintiff evidence in rebuttal on those issues. Permission to examine the handwriting expert during the evidence in rebuttal was wrongly denied to the plaintiffs.

In the result. Civil Revision No. 1720 of 1998 is dismissed. Civil Revision No. 3661 of 1998 is allowed. The order dated March 12, 1998 is quashed. The trial Court is directed to allow the plaintiffs to examine the handwriting expert.

No costs.