Manjit Singh and Others vs Surender Singh and Another

L.N. Mittal, J.—In this revision petition filed under Article 227 of the Constitution of India by defendants including legal representatives of defendant no. 1 since deceased (excluding one of her legal representative Sumitra-proforma respondent no. 2), challenge is to order dated 23.08.2012 Annexure P-7 passed by the trial Court thereby allowing application Annexure P-4 filed by respondent no. 1-plaintiff for permission to examine handwriting expert to compare alleged signatures of defendant no. 2-Manjit Singh on alleged declaration/kabuliyatnama Annexure P-6 with his standard/admitted signatures on written statement and vakalatnama. It is a family dispute. Jage Ram was common ancestor of the parties, plaintiff and defendant no. 1 being his sons and defendants no. 2 and 3 being his grand sons. Plaintiff has alleged that Jage Ram had made declaration Annexure P-6 regarding settlement/partition. Defendants have denied the same. In rebuttal evidence, the plaintiff summoned defendant no. 2 as witness who denied his alleged signatures on document Annexure P-6. In view thereof, the plaintiff filed application Annexure P-4 for examining hand writing expert. The defendants by filing reply Annexure P-5 contested the application and controverted the averments made therein. It was pleaded that proposed evidence could be led by the plaintiff in affirmative evidence and not at the stage of rebuttal evidence.

Learned trial Court vide impugned order Annexure P-7 has allowed application Annexure P-4 filed by the plaintiff. Feeling aggrieved, defendants have filed this revision petition to challenge the said order.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioners vehemently contended that proposed evidence cannot be led at the stage of rebuttal evidence because the said evidence should have been adduced by the plaintiff in affirmative evidence. On the other hand, counsel for respondent no. 1 -plaintiff contended that proposed evidence has been rightly allowed because defendant no. 2 on being summoned as witness in rebuttal evidence, denied his signatures on document Annexure P-6.

I have carefully considered the rival contentions. It is correct that proposed evidence could not be allowed to be led in rebuttal evidence by the plaintiff because the same was required to be adduced in affirmative evidence. However, the proposed evidence can be allowed to be led by the plaintiff by way of additional evidence on payment of costs. Defendants can be duly compensated by way of costs. Moreover, defendants shall also get opportunity to lead evidence in rebuttal of aforesaid evidence of the plaintiff. The document was pleaded in the plaint itself and has not been introduced at later stage.

In the aforesaid circumstances, I find that impugned order of the trial Court suffers from illegality and jurisdictional error to the aforesaid extent i.e. the proposed evidence could not be allowed in rebuttal evidence but should have been allowed as additional evidence on payment of costs. Resultantly, the instant revision petition is allowed partly. Impugned order Annexure P-7 passed by the trial Court is modified and plaintiff is permitted to examine handwriting expert by way of additional evidence on payment of Rs. 5,000/- as costs precedent.