Keshyan Brother and Others vs J. K. Cement Works and Another

L.N. Mittal, J.—Defendants have invoked jurisdiction of this Court under Article 227 of the Constitution of India to impugn order dated 12.01.2010 (Annexure P-1) passed by learned Additional Civil Judge (Senior Division), Gurgaon, thereby allowing application moved by plaintiffs/Respondents for examining handwriting expert as witness in rebuttal evidence and in the alternative, by way of additional evidence.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the Petitioners contended that the trial court has allowed the application of plaintiffs without recording any reasons for the same and even it has not been specified whether examination of handwriting expert has been permitted by way of rebuttal evidence or additional evidence. To this extent, the contention merits acceptance. The impugned order is practically non-speaking. After noticing contentions raised by counsel for the parties and judgments cited at bar, the trial court straightway, without any discussion and without recording any reasons, allowed the application of plaintiffs and did not even specify whether examination of handwriting expert has been allowed in rebuttal evidence or by way of additional evidence, although the case was adjourned for rebuttal evidence of the plaintiff after passing impugned order. The impugned order is thus completely unsustainable.

In view of the aforesaid, ordinarily the matter should have been remanded to the trial court for fresh decision of the application. However, it appears to be a futile exercise to remand the case and it would be in the interest of parties to dispose of the plaintiffs'' application by this Court itself. The plaintiffs want to examine handwriting expert as witness on an issue, of which the onus is on the plaintiffs. Consequently, they cannot examine the witness in rebuttal evidence. Resultantly, it has to be seen whether plaintiffs are entitled to examine the said witness by way of additional evidence or not.

Learned Counsel for the defendants/Petitioners contended that the plaintiffs/Respondents were already aware of the document in question and therefore, the plaintiffs should have examined the handwriting expert as witness in affirmative evidence at appropriate stage regarding comparison of signatures of different persons on various bills and the plaintiffs cannot be permitted to examine the handwriting expert by additional evidence as they were not diligent. Reliance in support of this contention has been placed on four judgments of this Court namely Fashion Express v. Smt. Archna Dass reported as 2002 (1) CCC 586 (P&H), Daya Kaur v. Risala reported as (1996) PLR 168, Khuda Bux v. Nafis Ahmad reported as (1998) PLR 561 and Munna Lal v. Sadhu Ram and Ors. reported as (2009) PLR 696.

On the other hand, learned Counsel for the plaintiffs/Respondents contended that the defendants/Petitioners produced secondary evidence of some bills and also examined handwriting expert as witness in their evidence. The said bills, it is contended, were not pleaded in the written statement and therefore, the plaintiffs could not examine handwriting expert as witness in their affirmative evidence.

I have carefully considered the rival contentions. Since defendants led secondary evidence of the bills in question, the plaintiffs, in my considered opinion should be permitted to examine the handwriting expert by way of additional evidence on payment of cost. Stakes in the case are very high as the suit is for recovery of Rs. 56,74,782.29 paise. The proposed additional evidence is very material and should not be shut out merely on the basis of technicalities.

For the reasons aforesaid, the instant revision petition is disposed of by directing that the plaintiffs shall be entitled to examine the handwriting expert by way of additional evidence on payment of Rs. 10,000/- as cost precedent.