Punjab-Haryana High Court
Satish Kumar vs M/S Bedi Engineers (India) And Another on 30 July, 2012
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No. 7189 of 2010
Date of decision: July 30, 2012
Satish Kumar
.. Petitioner
Vs.
M/s Bedi Engineers (India) and another
.. Respondents
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. P.K. Jain, Advocate for the petitioner.
Mr. V.M. Gupta, Advocate and
Ms. Sonal Dutta, Advocate for the respondents.
A.N. Jindal, J
Assailed in this petition is the order dated 31.7.2010 passed by the learned Additional District Judge, Ludhiana, dismissing the application for permitting the petitioner to examine the hand writing expert for comparing the signatures of the plaintiff- petitioner on affidavit Ex.PW4/A and Ex.PW4/E and the dissolution deed with his standard signatures by way of rebuttal evidence.
The factual background of the case is that the plaintiff- petitioner (herein referred as, 'the petitioner') filed a suit for permanent injunction restraining the defendants from passing off his goods of the trade mark "TUFF", 'Indian Tuff' and/or 'ESKEY' or from infringing any copy right therein, on the averments that the petitioner had remained partner in partnership firm M/s Eskey Industries, 1362/3, Sewak Pura, Kalsian Road, Ludhiana and that the said firm was carrying on business of manufacturing and marketing of parts of cycles and fittings thereof as well as parts of motor and vehicles including cycle pedals and that it adopted the trade mark "TUFF", 'Indian Tuff' and/or 'ESKEY' for the purpose of marketing those goods. The defendant firm is making misuse and making infringement of the trade mark.
The defendants- respondents appeared and contested the suit by filing written statement dated 19.8.1999. They pleaded that the firm as Civil Revision No. 7189 of 2010 -2- alleged by the petitioner stood dissolved vide dissolution deed dated 19.3.1997. He has also pleaded that the petitioner had given two affidavits relinquishing his rights in the trade mark.
In the replication, the petitioner denied having executed any dissolution deed and the affidavits stating that same were forged and fabricated documents.
Out of the seven issues, the onus to prove the following issues was upon the defendant :-
2. Whether the plaintiff has not come to the court with clean hands?OPD
3. Whether the suit is not maintainable?OPD
4. Whether the plaintiff has no locus standi to file the present suit?OPD
5. Whether the plaintiff is estopped from filing this suit by his act and conduct?OPD
6. Whether the suit is bad for non-joinder of necessary parties?
The plaintiff had led evidence in affirmative on all the issues, the burden of which was upon him and reserved his right to lead evidence on the issues by way of rebuttal to the evidence to be produced by the defendants. The petitioner concluded his evidence. The defendants in their evidence, on the aforesaid issues, examined handwriting expert as DW-4 from the Forensic Science Laboratory, Chandigarh in order to prove that the dissolution deed and the affidavits were genuine documents. Subsequently, when it was the turn of the plaintiff to lead evidence in rebuttal, he moved the application on 26.9.2009 seeking permission to examine hand writing expert in order to prove the forgery committed by the defendant qua the aforesaid documents. The trial court dismissed the application on 31.7.2010.
The learned counsel for the defendant while urging that the petitioner had no right to lead evidence in rebuttal as he could challenge these documents while examining the witnesses in affirmative pressed for dismissing the petition. In this regard he has placed reliance on the judgment delivered in case Jagdev Singh and others vs. Darshan Singh Civil Revision No. 7189 of 2010 -3- and others, 2007 (1) R.C.R. (Civil) 794.
Having perused the judgment, learned counsel appears to have misunderstood the judgment while applying the same to the facts of the present case. The judgment clearly reveals that the plaintiff- respondent could lead evidence in rebuttal on the issues, onus of which was upon the defendant and after the evidence led by the defendant, the onus shifted upon the plaintiff to rebut the same. The relevant extract from the observations made in Jagdev Singh's case (supra), are reproduced as under :-
"In terms of the aforesaid dictum, it is evident that the plaintiffs-respondents cannot as a matter of right lead evidence in rebuttal on issues, the onus of proof of which is on them. The plaintiffs-respondents had concluded their evidence in the affirmative on 11.3.1998 and reserved their right to produce evidence in rebuttal. However, the onus to prove the memo of partition dated 12.5.1989 and the rapat roznamcha which was got entered with the Halqa Patwari on 29.7.1994 was on them (plaintiffs-respondents). Therefore, they could not examine the handwriting expert as a matter of right. Therefore, it is to be seen in the facts and circumstances of each case whether the plaintiffs can examine a handwriting expert in rebuttal. The ground for examination of the handwriting expert is that the defendant- Jagdev Singh while appearing in the witness box did not give clear answer as regards his signatures on the memo of partition dated 12.5.1989 and the rapat roznamcha which was got entered with the Halqa Patwari on 29.7.1994. In this regard, it is appropriate to note that it is for the plaintiffs to prove their case in accordance with law on the basis of evidence. The fact that Jagdev Singh in his cross-examination did not make clear the point as to whether the said documents bear his signatures would not per se entitle the plaintiffs to examine a handwriting expert in rebuttal although for not giving answers to the questions posed during cross- examination may entail the drawing of an adverse inference for the purposes of appreciation of evidence. However, it would Civil Revision No. 7189 of 2010 -4- not give a right to the plaintiffs to make clear the point by producing a handwriting expert at that stage. In the circumstances, the learned trial Court while passing the impugned order has violated the procedure provided for leading evidence which has resulted in causing prejudice to the petitioners and would vitiate the impugned order. Thus, from the bare reading of the aforesaid observations it transpires that the plaintiff was not at liberty to lead any evidence in rebuttal on the issues, the onus regarding which was upon the plaintiff-respondent. However, the present case is on different footings as in this case, the onus to prove that the dissolution deed as well as affidavits permitted the plaintiff to use the trade mark and the said dissolution deed was executed by the plaintiffs, therefore, cause of action accrued to the plaintiff to lead evidence on these documents only when these documents are duly proved by the defendants on the record. The defendant placed reliance upon these documents and its execution stands proved. Before the evidence is led by the defendant, the plaintiff could not anticipate if the defendants really wanted to prove these three documents, as such, the judgment delivered by the Division Bench of this Court in Jagdev Singh's case (supra) is not applicable to the facts of the present case.
Similar question as to whether the plaintiff has right of rebuttal to the issues onus of which was upon the defendant arose before this court in case Pawan Kumar vs. Surinder Pal and another, 2009 (3) Civil Court Cases 380 wherein it was observed as under :-
"The proving of an issue by the defendant depends upon the specific plea taken in defence by the defendant and that burden can be discharged by the defendant by proving his case by his evidence and then the plaintiff can rebut those issues of the defendant by leading evidence. Sometime, it happens that one issue is framed placing burden upon the plaintiff and another issue may be an issue of rebuttal of the issue framed for plaintiff, then in that case, the plaintiff if leads evidence to prove his case, it is not necessary to say that he led evidence to meet with the defence of the defendant because of the reason Civil Revision No. 7189 of 2010 -5- that the plaintiff has right to prove his case and for that purpose he may not take risk of not proving his case on his assumption that the facts pleaded may be treated as admitted by the defendant by the Court, which may be disputed or may be interpreted subsequently in otherwise way on the basis of the pleas of the defendant. Therefore, what evidence the plaintiff has led on the issues and whether the plaintiff touched the issue of the defendant depends upon the facts of the case and no formula can be provided for deciding the matter."
In another case, Joginder Kaur vs. Jaswant Singh, 1998 (3) Civil Court Cases 274 (P&H) held that the defendant had examined the hand writing expert then the plaintiff has the right to examine the expert by way of rebuttal. In this case also the onus was upon the defendant to prove the issue, therefore, under these circumstances the court made the following observations :-
"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 ....."Civil Revision No. 7189 of 2010 -6-
In the instant case also, the onus to prove issue Nos. 2 to 6 was upon the defendant, therefore, the plaintiff was right in shifting the onus answering to the evidence so led by the defendant in support of these issues. The mere fact that the plaintiff had sought to bring on record these three documents does not amount to sufficient discharge of onus to prove that these documents are forged one. Even if the plaintiff has stated during cross examination that the documents so relied upon by the defendants are fabricated and forged one does not amount to discharge of onus. The plaintiff was well within his full rights to lead evidence by way of right of rebuttal which he had already reserved while closing the evidence in affirmative, to prove that the documents were forged one.
Resultantly, this petition is accepted, impugned order is set aside and the trial court is directed to proceed in accordance with law.
July 30, 2012 (A.N. Jindal) deepak Judge