Civil Revision No. 1788 of 2008 (1)
In the High Court of Punjab & Haryana at Chandigarh
Civil Revision No. 1788 of 2008 (O&M)
Date of decision : 22.1.2009
Dinesh Kumar ..... Petitioner
vs
Sudhir Kumar and others ..... Respondents
Coram: Hon'ble Mr. Justice Rajesh Bindal
Present: Mr. Vishal Garg, Advocate, for the petitioner.
Mr. O. P. Goyal, Senior Advocate with
Ms. Priay Khurana, Advocate, for respondents no. 1 and 2.
Rajesh Bindal J.
Challenge in the present petition is to the order dated 7.3.2008 passed
by the learned Court below whereby the application filed by defendants no. 1 and
2/ petitioner for amending issue no. 5 regarding placing of onus was dismissed.
The second order impugned is dated 4.1.2008 vide which the respondents were
permitted to get the document Ex. PW3/1 the agreement to sell, examined by an
hand-writing expert for giving his evidence in rebuttal.
Briefly, the facts are that the respondents no. 1 and 2/plaintiffs filed a
suit for possession by way of specific performance on 15.9.1997 on the basis of an
agreement to sell dated 8.8.1996. In the written statement filed by the petitioner,
who is now represented through the LRs. though accepted her signatures on the
document but stated that the document was never executed by her as her signatures
were obtained by the respondents/plaintiffs on blank papers under good faith
which were misutilised by them. The learned court on the pleadings of the parties
framed issues including issue no. 5 regarding which the objection is sought to be
raised by the petitioner. As the application for amendment of issue was dismissed
by the learned court below vide impugned order dated 7.3.2008, the present
petition is filed.
Learned counsel for the petitioner submitted that in terms of the
provisions of Section 101 of the Evidence Act, no issue can be framed putting
onus in the negative. The burden of proving a case is always on the plaintiff and
the document which is propounded by a person, the onus to prove the same is on
him. In the present case the learned court below has committed illegality in
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framing the issue in negative and also putting the burden for proving the same on
the petitioners/defendants.
On the other hand learned counsel for the respondents no. 1 and 2
submitted that the application filed by the petitioner at this stage is nothing else but
a device to delay the disposal of the case which is at the fag end and fixed for
arguments. The agreement to sell was executed on 8.8.1996. The date for
execution of the same was fixed as 20.10.1996. The respondents/plaintiffs issued
three notices and even sent a telegram but no response was received. In this factual
matrix, the suit was filed on 15.9.1997 in which the petitioner filed written
statement on 21.1.1998. The issues were framed on 1.4.1998. The entire evidence
was completed on 11.5.2005. Thereafter, the respondents filed application for
producing an hand-writing export which was ultimately allowed on 4.1.2008 and
even that evidence has also been recorded. It was, thereafter, that on 2.2.2008 that
the present petition was filed for amendment of issue which is not maintainable at
this stage as now after completion of the evidence the court will appreciate the
same finally. He further submitted that as far as challenge to the order dated
4.1.2008 is concerned, the same was earlier challenged by the petitioner before this
court by filing Civil Revision No. 199 of 2008 and that was dismissed as
withdrawn on 15.1.2008. Accordingly, no challenge to the same can be made in
the present petition. This fact was even recorded by this court while issuing notice
of motion on 25.3.2008. He further submitted that the court has rightly framed the
issue by putting the onus on the petitioner as it is only the contents of the
document and the execution thereof, which was denied by the petitioner, otherwise
the signatures as such were admitted. The onus of the fact as to whether the
document was signed by them or not is on the petitioner.
After hearing learned counsel for the parties, I do not find any merit
in the present petition. By filing the present petition all what the petitioner/
defendant is trying to achieve is indirect challenge to the order dated 4.1.2008
whereby the respondents/plaintiffs were allowed to get the agreement to sell Ex.
PW3/1 examined by an hand-writing expert in rebuttal evidence. The submission
of the learned counsel for the petitioner, that once the issue no. 5 is amended and
the onus thereof is shifted on the respondents/plaintiffs, they will not be entitled to
lead any evidence in rebuttal. However, the same cannot be permitted at this stage.
Even otherwise, a perusal of the facts as noticed above show that the written
statement was filed by the petitioner on 21.1.1998 and the issues were framed on
1.4.1998. No objection was raised for about 10 years about the correctness of the
issues framed and it was sought to be raised at the fag end when the entire
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evidence was complete which shall now be considered by the learned court below
in terms of the pleadings of the parties.
For the reasons mentioned above, I do not find any merit in the
present petition. The same is accordingly dismissed.
22.1.2009 ( Rajesh Bindal) vs. Judge