JUDGMENT
Viney Mittal, J.
1. view of the law laid down in the case of Shiv Shakti Coop. Housing Society Nagpur v. Swaraj Development and Ors., A.I.R. 2003 S.C. 2434, the revision petition filed by the petitioner under Section 115 CPC is not maintainable.
2. Faced with this difficulty, the learned counsel submits that the present revision petition be treated as petition under Article 227 of the Constitution of India. The prayer made by the learned counsel is allowed.
3. The plaintiff is aggrieved against the order dated April 28, 2003 passed by the Additional Civil Judge (Senior Division), Samrala. Vide the aforesaid impugned order, though the plaintiff has been permitted to lead evidence in rebuttal but he has not been allowed to examine any handwriting expert or Gurdev Kaur-plaintiff herself
4. Certain facts may be noticed:
The plaintiff filed a suit for possession of the land It was claimed that a will dated August 14, 1957 alleged to have been executed by Jagir Singh in favour of defendant No 1 is null and void and also that the decree suffered by Gurdial Kaur in favour of Kamaljit Kaur and Ranvir Kaur is also null and void qua the rights Of the plaintiff, since the property in question was joint Hindu family ancestral property. Various other pleas were also taken which are not necessary to be noticed, at this stage.
5. An issue was framed with regard to the will and the onus of proving the same was placed upon the defendants.
6 The parties Closed their evidence. In fact the plaintiff also closed his evidence in rebuttal on January 24, 2000. Thereafter, the defendants moved an application for additional evidence They Were allowed to adduce additional evidence with regard to the execution of the will. They led the aforesaid additional evidence.
7. Thereafter the plaintiff has moved the present application under Older 18 Rule 17-A of the Code of Civil Procedure. It was claimed that since the defendants had produced the additional evidence after the plaintiff has closed his evidence in rebuttal, therefore, he be permitted to lead further evidence in rebuttal and recall PW5-Gurdev Kaur and also examine a handwriting expert.
8. This application was contested by the defendants.
9. The learned trial court dismissed the aforesaid application filed by the plaintiff vide order dated April 28, 2003.
10. He plaintiff has now approached this court through the present revision petition.
11. I have heard Shri Jagdish Manchanda, Advocate, the learned counsel appearing for the plaintiff-petitioner and Shri Rakesh Gupta, Advocate, the learned counsel for the defendants and have also gone through the record of the case.
12. The learned trial Court while passing the impugned order has noticed that although the onus to prove the issue was upon the defendants but primarily it was for the plaintiff to dispel the suspicions in execution of the will in affirmative and since the plaintiff had not led any such evidence, therefore, although he was permitted to, lead the evidence in rebuttal but he, was not permitted to examine any handwriting expert or Gurdev Kaur-plaintiff, inasmuch as she had already appeared as PW5.
13. In my considered opinion, the entire approach of the learned trial Court and the observations made therein are totally contrary to the settled position of law. It was always for the person setting up a will to prove the due execution of the will and dispel all the doubts surrounding the aforesaid execution. Since in the present case it was the defendants who had set up the will dated August 14, 1957, therefore, it was for the defendant’s alone to have led evidence in support of the issue and it was only thereafter the plaintiff was required to lead evidence m rebuttal.
14. It is not in dispute that the defendants had been granted an opportunity of leading additional evidence with’ regard to the due execution of the will vide order dated February 1, 2000. The aforesaid opportunity was permitted to the defendants after the plaintiff had already closed his evidence in rebuttal. In this view of the matter alone, once the defendants Were granted opportunity for leading additional evidence to prove the issue, the onus of which was upon them, then as a natural corollary, the plaintiff was required to be permitted a corresponding opportunity of leading evidence in rebut tal. Any evidence led by the plaintiff in rebuttal earlier could not be taken to be any bar or impediment in granting the plaintiff a fresh opportunity of leading the evidence in rebuttal.
15. In this view of the matter, I have no hesitation in holding that the learned trial Court has completely overlooked the rules of evidence and has exercised its jurisdiction with material irregularity rather-illegally while passing the impugned order.
16. Accordingly the present revision is allowed and the application filed by the plaintiff for permitting the plaintiff to lead evidence in rebuttal is allowed. While leading the aforesaid evidence the plaintiff shall also be permitted to recall Gurdev Kaur-plaintiff as also to produce the handwriting expert in accordance with law.
17. Before parting with this order, it is noticed that the case has remained pending sine the year 1992 and in these circumstances only two effective opportunities shall be granted to the plaintiff to lead her entire evidence. The plaintiff shall lead her entire evidence at her won responsibility and without any assistance from the Court.
The parties, through their counsel have been directed to appear before the trial Court on October 6, 2003.