SUBHAN KHAN vs TAYYAB HUSSAIN AND ORS

Petitioner has filed the present revision petition

assailing order dated 17.04.2017 (Annexure P-3) passed by

Civil Judge (Jr. Divn.) Mewat vide which application dated

10.04.2017 filed by him for permission to examine handwriting

and fingerprint expert by way of additional evidence was

declined.

Brief facts are that in a suit for declaration with

consequential relief of permanent injunction filed by the

petitioner, he led evidence and thereafter evidence of the

defendants started. At the time of leading evidence, the plaintiff

did not examine any handwriting and fingerprint expert in

respect of relevant issue, the onus of which was upon himself.

The question arises as to whether the plaintiff can be

allowed to lead evidence in rebuttal or additional evidence in

respect of an issue, the onus of which on the plaintiff himself?

On the strength of observations made in Surjit Singh

and others vs. Jagtar Singh and others, 2007(1) RCR (Civil)

537 DB; Jagdev Singh and others vs. Darshan Singh and

others, 2007(1) RCR (Civil) 794 and Avtar Singh vs. Baldev

Singh, 2015(1) PLR 230, it can be concluded that the plaintiff is

not entitled to lead evidence in rebuttal in respect of an issue,

the onus of which was upon himself.

In Ram Kumar vs. Raj Kumar and others, 2014(3)

CivCC 453, it has held that handwriting expert cannot be

allowed to be examined in rebuttal and even cannot be allowed

by way of additional evidence as this fact was within the

knowledge of the petitioner at the time, when he was leading

evidence in affirmative. Parties cannot be allowed to fill lacuna

by adducing additional evidence without satisfying the Court that

such an evidence is required for effective adjudication of the

case.

Plaintiff had the knowledge from the very beginning.

Having failed to lead evidence in affirmative and also in rebuttal,

plaintiff cannot resort to an application under Order 18 Rule

17-A CPC as the same would be having the effect of filling

lacuna and would be in negation to the order vide which prayer

for leading evidence in rebuttal could have been declined.

In M/s Shree Sangmeshwar Mahadev Gramo Udyog

Mandal vs. Ajmer Singh and another, 2014(4) Law Herald

3627, this Court held that the additional evidence cannot be

allowed to be led by the plaintiff, when evidence was within his

knowledge at the time of leading evidence in affirmative.

Additional evidence to contradict the evidence of the defendant

cannot be allowed in such circumstances. No satisfaction could

be made out with regard to the fact that the evidence in question

was not within the knowledge of the plaintiff at the time of

leading evidence in affirmative. The discretion under inherent

powers of the Court cannot be exercised in the facts and

circumstances of the case.

Having considered the issue in the light of material on

record, I find that the impugned order does not require any

interference as the plaintiff is not entitled to lead additional

evidence in the form of examining handwriting and fingerprint

expert in respect of an issue which is legally required to be

proved by the plaintiff and onus was on the plaintiff himself to

prove the same.

In view of above, this revision petition is dismissed.