CR No.1270 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.1270 of 2007
Date of Decision: 30.10.2008
Ram Rattan ....Petitioner
Vs.
Anand Pandit & Ors. ..Respondents
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.Naveen Sharma, Advocate,
for the petitioner.
Mr.Sudeep Mahajan, Advocate,
for respondent Nos.1 & 2.
---
1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
Digest?
---
Vinod K.Sharma,J. (Oral)
The petitioner has invoked the revisional jurisdiction of this
court to challenge the order dated 6.1.2007 passed by the learned Civil
Judge (Junior Division), Jalandhar dismissing an application moved by the
CR No.1270 of 2007 2
petitioner for recall of order dated 18.4.2006 vide which plaintiff-
respondents were permitted to examine Handwriting Expert in rebuttal.
The petitioner claimed that the evidence of the petitioner-
defendant was closed on 7.2.2006 and thereafter the case was adjourned to
29.3.2006 for rebuttal and arguments. It is the case of the petitioner that
issues framed in the suit did not leave any scope for examining Handwriting
Expert in rebuttal. It was claimed that the application moved for examining
Handwriting Expert in rebuttal was not supplied nor reply was sought from
the counsel for the petitioner and the same was allowed without giving
opportunity of hearing. The petitioner came to know about the order dated
8.9.2006 when the expert appeared. It was claimed that the plaintiffs had no
right to examine Handwriting Expert in rebuttal as there was no such issue.
On notice reply was filed where a stand was taken that the
counsel for the petitioner was present in court on 18.4.2006 when the
application was moved and copy thereof was supplied to him. The
application was allowed after hearing him.
It was denied that the petitioner came to know about the order
on 8.9.2006 as claimed. It was further the case of the respondent-plaintiffs
that when Expert appeared the case was adjourned to 5.5.2006.On the said
date, counsel for the defendant was present and PW 4 was examined and
photographs were taken by expert. Thus, the averments made in the
application were denied.
The learned trial court observed that in the present suit for
possession by way of specific performance. Issues were framed on 1.8.2003
which read as under:-
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1. Whether the plaintiffs are entitled for the specific
performance as prayed for?OPP
2. Whether the suit of the plaintiff is not maintainable in the
present form? OPD
3. Whether the plaintiffs have not come to the court with
clean hands? OPD
4. Whether the plaintiffs are estopped by their act and
conduct from filing the present suit? OPD
5. Relief.
It was further observed by the learned trial court that the
plaintiffs led evidence and concluded the same and thereafter the
defendant-petitioner led evidence and examined Handwriting Expert and
closed his evidence. The court observed that objection of the defendant/
petitioner was that Handwriting Expert could not be examined in rebuttal as
it was only possible to examine the said Expert in affirmative.
The court did not go into the merits of the claim but dismissed
the application by placing reliance on the judgment of this court in the case
of Kashmir Kaur Vs. Bachan Kaur & Anr. 2000 (1) PLR 606.
Learned counsel appearing on behalf of the petitioner has
challenged the impugned order by placing reliance on the judgment of this
court in the case of Surjit Singh & Ors. Vs. Jagtar Singh & Ors AIR
2007 Punjab & Haryana 1 to contend that the judgment in the case of
Kashmir Kaur Vs. Bachan Kaur (supra) on which reliance was placed
by the learned trial court stood overruled by the Division Bench of this
court. Thus, it was contended that the impugned order cannot be sustained.
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Mr.Sudeep Mahajan, learned counsel appearing on behalf of
the respondents controverted the allegations on the plea that the judgment of
this court in the case of Kashmir Kaur Vs. Bachan Kaur & Anr. (supra)
was not overruled by this court in the case of Surjit Singh & Ors. Vs.
Jagtar Singh & Ors (supra).
However, this plea cannot be accepted as the Division Bench of
this Court specifically held that they were unable to agree with the
observations made by the learned Single Judge in the case of Kashmir
Kaur Vs. Bachan Kaur & Anr. (supra) that a party is entitled to lead
evidence in rebuttal as a matter or right. It was specifically held that the said
observations are contrary to the judgment of Division Bench of this case in
the case of Smt.Jaswant Kaur and another Vs. Devinder Singh and
others AIR 1983 Punjab and Haryana 210.
The impugned order has been passed merely by placing
reliance on the observations made by this court in the case of Kashmir
Kaur Vs. Bachan Kaur & Anr. (supra). Thus, the contention of the
learned counsel for the petitioner has force and deserves to be accepted.
Faced with this situation, learned counsel for the respondents
contended that in fact the evidence in rebuttal was required to controvert the
evidence led by the defendants on issue No.3. However, this contention
also cannot be accepted. Evidence to prove the agreement was required to
be led on issue No.1 and not on Issue No.3 and therefore, the evidence
sought to be led by the respondent/plaintiffs was in fact on issue No.1, the
onus of which was on the plaintiff/respondents and therefore, the
respondent/plaintiffs could not have been permitted to lead evidence by
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examining the Expert in rebuttal to prove the agreement of sale.
For the reasons stated above, the impugned order cannot be
sustained. This revision is accordingly accepted. The impugned order is set
aside and the application moved by the petitioner for recalling the order
stands allowed with no order as to costs.
30.10.2008 (Vinod K.Sharma) rp Judge