Mukand Singh vs Ajit Singh

V.S. Aggarwal, J.—The present revision petition has been filed by Mukand Singh petitioner directed against the order passed by the learned Addl. Senior Sub Judge. Nabha, dated 10.11.1997. By virtue of the impugned order, learned trial Court allowed the application of respondent-defendant and directed the petitioner to produce his witnesses for cross-examination.

Some of the relevant facts are that the petitioner-plaintiff filed a suit for specific performance of the agreement dated 15.7.1987. It was asserted that the respondent had agreed to sell the property and received Rs. 70,000/- as earnest money. The balance sale consideration was payable on the stipulated date i.e. 11.12.1989. The possession had remained with the respondent. The respondent had filed written statement and denied the execution of agreement to sell. He took up the plea of fraud. After trial, the learned Civil Judge decreed the suit vide judgment and decree dated 12.12.1992. Aggrieved by the said judgment and decree, an appeal was filed in the Court of learned Addl. District Judge. During the pendency of appeal before the learned Addl. District Judge, respondent filed an application seeking amendment of the written statement. The amendment application was declined by the learned Addl. District Judge. The respondent filed a revision petition in this Court. The same was allowed. In other words, the amendment application filed by the respondent was allowed. It was held that the plea of fraud and forgery has already been taken. The amendment was in the nature of elaboration of the plea. Accordingly, the order of learned Addl. District Judge was set aside.

When the matter was taken up by the learned Addl. District Judge, additional issue No. 4-A was framed, namely, whether the agreement in question is the result of forgery and fraud as alleged? OPP

Thereupon the case has been remitted to the Court of Civil Judge. Learned Addl. District Judge directed that the trial Court should record evidence that may be produced by the parties and sent the report to the learned Addl. District Judge. Before the learned trial Court, a request was made for seeking fresh permission to cross-examine the witnesses already produced by, the petitioner-plaintiff. It was asserted that they intended to cross-examine qua the plea of fraud already raised. The said application was opposed.

Learned Addl. Civil Judge vide its impugned order held that details of the fraud came through the amendment. No restrictions were imposed to lead evidence to substantiate the plea of fraud. It was held, therefore, that the respondent had a right to cross-examine those witnesses. The application was allowed. Aggrieved by the same, the present revision petition has been filed.

The resume of the facts given above clearly reveals that the additional issue had been framed as to whether the agreement in question is the result of forgery as already pointed out above. Certain elements of fraud were allowed to have been incorporated. Learned Addl. District Judge directed the Civil Judge to record further evidence. The evidence would include even the statements already recorded and when as a result of further plea that has to be incorporated and further cross-examination is required, it would also be forming part of the evidence. In these circumstances, learned trial Court was justified in holding that there was no restriction imposed to lead evidence.

However, in this regard it goes without saying that Dr. A.K. Singla has been examined as handwriting expert. Regarding his statement, there was nothing to be incorporated with respect to the alleged fraud, if any. He has already made his statement as an expert. Further cross-examination is not competent. To that extent, therefore, the learned trial Court was not justified in allowing the said witnesses to be cross-examined.

As regards other witnesses, indeed, further cross-examination allowed was justified because the respondent wanted to substantiate the plea of fraud. The details of fraud has come through the amendment. Therefore, the trial Court right felt that these witnesses should be recalled for cross-examination. There is no ground to interfere in the impugned order to that extent.

For these reasons, the revision petition is allowed in part. Dr. A.K. Singla, document expert, need not be recalled for cross-examination. As regards recalling of other witnesses, the revision petition is dismissed.