Civil Revision No. 209 of 2008 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 209 of 2008
Date of decision: 27.01.2009
Devki Nandan ...Petiitioner
Versus
Madan Lal ...Respondent
CORAM: HON'BLE MR. JUSTICE S.D.ANAND.
Present: Mr. Jai Bhagwan, Advocate, for the petitioner
Mr. Atul Jain, Advocate for the respondent.
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S.D.ANAND, J.
The plaintiff-petitioner filed a suit for possession, by way of
specific performance, of the land under reference. The essential
foundational premise for the filing of the suit is the impugned dated dated
26.8.1996. In the written statement, the defendant-respondent raised a
plea that impugned agreement was a result of fraud and forgery. Initially,
the trial proceeded on the following issues:-
“1. Whether plaintiff is entitled to possession of
property in dispute and specific performance of
contract dated 26.8.1996? OPP
2. Whether suit is not maintainable in the its present
form?
3. Whether plaintiff has suppressed true and material
facts from Court? If so, its effect? OPD
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4. Whether plaintiff is estopped by his own act,
conduct, admissions and commissions to file
present suit? OPD
6. Relief”
It was only on 3.11.2004 that the learned Trial Court framed
the following additional issue :-
“5-A Whether agreement in question is result of fraud
and forgery as alleged? OPD”
After conclusion of the evidence of defendant, the plaintiff filed
a plea for being allowed to examine the Handwriting and Finger Print
Expert.
The plea raised thereby is that the evidence adduced would
be in rebuttal of the issue No. 5-A, the onus of proof where was on the
defendant. The plea was declined by the learned Trial Court by observing
that the plaintiff-petitioner ought to have examined evidence of affirmative
character earlier and it further held that he cannot be allowed to adduce
evidence of affirmative character (which was to adduce at the time of its
own evidence) in rebuttal.
In support of the plea for invalidation of the impugned order,
learned counsel for the petitioner argues that the Trial Court having allowed
the plaintiff-petitioner to get the disputed signature photographed at the
hands of the Handwriting and Finger Print Expert on 31.10.2007 (Annexure
P-3), is estopped from denying the opportunity to the plaintiff-petitioner to
examine the Handwriting and Finger Print Expert particularly when the
case came to be adjourned for adducing of rebuttal evidence on
29.10.2007 and 7.11.2007 without any objection from the opposite party.
The plea raised thereby is that the defendant-respondent had thereby
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conceded the entitlement of the plaintiff-petitioner to examine the
Handwriting and Finger Print Expert.
The plea raised on behalf of the plaintiff-petitioner is plainly
devoid of merit. It is apparent from the impugned order itself (para 5
thereof) that plaintiff-petitioner did move an application dated 25.10.2004
(when he was adducing evidence of affirmative character) for a direction to
the defendant-respondent to give his specimen signature and thumb
impression for comparison by the expert “but at that time he did not pursue
his that application”. The mere fact that the learned Trial Court allowed the
inspection of file and obtaining of photographs by the Handwriting and
Finger Print Expert on 31.10.2003 would not estop the Court from obtaining
the view under challenge. The plea for inspection of a file comes to be
allowed in routine. The mere allowance of inspection of file (by the expert)
to obtain the photographs of the disputed signature and thumb impressions
would not reflect that the Court had thereby allowed the examination of the
expert.
It is common ground otherwise that the defendant-respondent
did not adduce any evidence on issue No. 5-A inspite of the fact that
adequate opportunities were afforded for it and the evidence, ultimately,
came to be closed under the orders of the Court on 17.10.2007. It is, thus,
apparent that the defendant-respondent disabled himself from adducing
evidence in respect of Issue no.5-A. Where does, thus, the question of
any evidence in rebuttal arise? It is a poser which defies logical
comprehension. That poser would arise only if it is assumed (for the sake
of arguments) that the petitioner is entitled to adduce rebuttal evidence.
The finding otherwise is that the plaintiff-petitioner was not entitled to
adduce any rebuttal evidence when the essential onus to prove the
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execution of the impugned agreement was on him and he had already
adduced evidence of affirmative character in support thereof.
In the light of the above discussion, the petition is held to be
denuded of merit and is ordered to be dismissed.
January 27, 2009 (S.D.Anand) Pka Judge