Jaswant Singh vs Dharamjit Singh and Others

L.N. Mittal, J.—Defendant Jaswant Singh has filed this revision petition under Article 227 of the Constitution of India impugning order dated 15.09.2011 (Annexure P-3) passed by learned Additional Civil Judge (Senior Division), Baba Bakala, thereby permitting plaintiffs-respondents to examine Handwriting Expert in rebuttal evidence. Respondents-plaintiffs have filed suit for specific performance of agreement to sell dated 20.07.1993, as amended vide writings dated 26.02.1994 and 29.04.1994. The defendant denied his signatures on writings dated 26.02.1994 and 29.04.1994. The defendant examined Handwriting Expert in support of his version. Plaintiffs, by moving application Annexure P-1, sought permission to examine Handwriting Expert for comparison of disputed signatures of defendant on the said writings with his specimen signatures so as to rebut the testimony of Handwriting Expert examined by the defendant. The defendant resisted the application by filing reply Annexure P-2. The trial court has allowed the said application vide order Annexure P-3, which is under challenge in this revision petition.

I have heard Learned Counsel for the parties and perused the case file.

Counsel for the petitioner contended that plaintiffs could examine the Handwriting Expert in affirmative evidence and not in rebuttal evidence. On the other hand, counsel for respondents-plaintiffs contended that no issue was framed regarding writings dated 26.02.1994 and 29.04.1994, and therefore, plaintiffs could not examine the Handwriting Expert in affirmative evidence.

I have carefully considered the rival contentions.

Onus was on the plaintiffs to prove the original agreement dated 20.07.1993, as amended vide writings dated 26.02.1994 and 29.04.1994. Issue no. 1 has been framed regarding specific performance of the agreement to sell dated 20.07.1993. In the absence of specific issue regarding writings dated 26.02.1994 and 29.04.1994, issue no. 1 relating to the original agreement would cover the same. In any event, mere non-framing of specific issue regarding the aforesaid writings would not entitle the plaintiffs to lead evidence in rebuttal regarding a fact which had to be proved by the plaintiffs in affirmative.

For the reasons aforesaid, I find that impugned order of the trial court is patently perverse and illegal and suffers from jurisdictional error. Plaintiffs could not be permitted to examine the Handwriting Expert in rebuttal evidence merely because the defendant had examined Handwriting Expert in his evidence. Accordingly, the instant revision petition is allowed. Impugned order Annexure P-3 passed by the trial court is set aside and application Annexure P-1 filed by the respondents-plaintiffs stands dismissed.