Punjab-Haryana High Court
Joginder Kaur vs Jaswant Singh on 1 August, 1997
Equivalent citations: (1998)119PLR684
ORDER G.C. Garg, J.
1. This revision petition is directed against the order dated 10.8.1996 of the trial court.
2. Plaintiff-petitioner filed a suit for permanent injunction against the defendant-respondent restraining him from interfering in her peaceful possession over the suit land. The defendant took up the stand that he is in possession of the suit land. He further averred that the plaintiff-petitioner entered into an agreement dated 21.3 1992 to sell the suit land to him and he is in possession of the land from the date of the agreement. In the replication plaintiff-petitioner specifically and categorically denied the execution of the agreement dated 21.3.1992 and also pleaded that the agreement did not bear her signatures and the alleged agreement is a forged and fabricated document and that the defendant-respondent is not in possession of the suit land.
3. On the pleadings of the parties the trial court formed the following issues:-
i) Whether the plaintiff is in possession of the suit land ? OPP
ii) Whether the plaintiff executed the agreement dated 21.3.1992 in favour of the defendant and if so to what effect ? OPD
iii) Relief.
4. Plaintiff led evidence in the affirmative on issue No. 1. Similarly defendant led evidence in the affirmative on issue No. 2 as also the rebuttal evidence under issue No. 1. The case was thereafter listed for the rebuttal evidence of the plaintiff.
5. The defendant while leading his evidence produced handwriting expert to show that the agreement dated 21.3.1992, Ex. D-1 bore the signatures of the plaintiff. The plaintiff moved an application seeking permission to get the photograph of her alleged signatures on the agreement dated 21.3.1992 and the photographs of her standard signatures on the plaint, Vakalatnama, statement given by her in court for comparison by the handwriting and document expert. It is this application which was declined by the trial court by observing that the handwriting expert had already been examined by the defendant and the plaintiff had sufficient time to cross-examine the said expert and that the entire evidence is to be read as a whole and it will be decided at the time of final adjudication, if the said report is valid or not and that no purpose will be served by allowing the plaintiff to examine the expert again for the same purpose.
6. In response to the notice of motion respondent has put in appearance through Mr. P.P.S. Duggal, Advocate.
7. After hearing learned counsel for the parties this court is of the opinion that the order under revision is not sustainable and deserves to be set aside. The learned trial court acted with-material irregularity and illegality in declining the prayer of the plaintiff and dismissing the application. As already noticed an issue was framed relating to the execution of the agreement and the onus of that issue was on the defendant, therefore, he had the right to lead the affirmative evidence in the first instance and the plaintiff had the right to lead rebuttal evidence. The mere fact that the defendant had examined an expert and the plaintiff had an opportunity to cross-examine the witness, the trial court cannot take away the right of the plaintiff to produce an expert, especially when she had the right in law to adduce rebuttal evidence on issue No. 2. Appreciation of evidence is a different matter, but whether a litigant can be refused to adduce evidence, which he has a right to do is another. The trial court in my opinion has acted illegally in declining the prayer of the plaintiff. In the facts and circumstances of this case, It cannot be said that the intention of the plaintiff was to delay the proceedings in the case. In that view of the matter this revision petition is allowed, order under revision is set aside and the plaintiff-petitioner is permitted to produce her expert in rebuttal. Parties through their counsel have been directed to appear before the trial court on 11.8.1997 on which date the trial court shall fix a date in the month of August 1997 and in any case in the first week of September 1997 for evidence of the expert. It is, however, clarified that the plaintiff will produce her expert at her own risk and responsibility on the date fixed by the trial court.