Punjab-Haryana High Court
Jaswinder Singh vs Smt. Rajwant Kaur & Ors on 10 March, 2014
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Civil Revision No.1770 of 2014 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.1770 of 2014 (O&M)
Date of Decision:- 10.3.2014
Jaswinder Singh
......Petitioner
Versus
Smt. Rajwant Kaur & Ors.
.....Respondents
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.Bikramjit Arora, Advocate for the petitioner.
MEHINDER SINGH SULLAR, J. (Oral)
Concisely, the facts and material, culminating in the commencement, relevant for deciding the instant revision petition and emanating from the record, are that, initially, petitioner-plaintiff Jaswinder Singh son of Sardul Singh (for brevity "the plaintiff") has instituted the civil suit for a decree of declaration, with a consequential relief of permanent injunction, against respondent-defendants Pargat Singh s/o Inder Singh (since deceased), now represented by his LRs and Malook Singh s/o Asa Singh (for short "the defendants"). The defendants refuted his claim, filed written statement, stoutly denied all the allegations contained in the plaint and prayed for dismissal of the suit.
2. As soon as, the case was slated for rebuttal evidence & arguments, in the meantime, the plaintiff moved an application (Annexure P1), to produce the Handwriting & Finger Print Expert to compare the thumb impressions of Sardsool Singh s/o Dalip Singh on the sale deed.
3. The trial Court dismissed the pointed application (Annexure P1), by virtue of impugned order dated 21.1.2014 (Annexure P2). Arvind Kumar Sharma 2014.03.13 14:03 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.1770 of 2014 (O&M) 2
4. Aggrieved thereby, the petitioner-plaintiff has preferred the present revision petition, invoking the superintendence jurisdiction of this Court under Article 227 of the Constitution of India.
5. At the very outset, in exercise of power conferred under Article 227 of the Constitution of India, I hereby exempt the issuance of notice to the respondent-defendants, in order to save them from the expenditure of counsel fees, litigation expenses in this Court and the delay in disposal of the suit and they can well be compensated with adequate costs in this respect. Be that as it may, however, in case, they are aggrieved by the order, in any manner, they would be at liberty to file a petition to recall this order without accepting the costs.
6. After hearing the learned counsel for the petitioner, going through the record with his valuable assistance and after deep consideration over the entire matter, to my mind, the instant revision petition deserves to be partly accepted in this context.
7. As is evident from the record that the plaintiff has filed the civil suit for a decree of declaration, with a consequential relief of permanent injunction against the defendants in the manner depicted here-in-above. Having framed the following issues arising out of the pleadings of the parties, the case was listed for evidence of the plaintiff:-
1. Whether Sardool Singh son of Dalip Singh executed valid registered will dated 9.11.2006 in favour of the plaintiff. If so its effect?OPP
2. Whether the plaintiff is the owner and in possession of the suit properties as alleged ?OPP
3. Whether suit in the present form is not maintainable?OPD
4. Whether Sardool Singh and Parkash Kaur sold 10 marlas of the suit property vide sale deed dated 20.5.1996, if so its effect?OPD
5. If issue no.4 is proved whether the impugned sale deed dated 20.5.1996 is without consideration as alleged?OPP
6. Relief.Arvind Kumar Sharma 2014.03.13 14:03 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.1770 of 2014 (O&M) 3
8. Thereafter, the parties brought on record their respective evidence and the case was fixed for rebuttal evidence & arguments. Subsequently, the plaintiff has moved an application (Annexure P1) to produce the Handwriting & Finger Print Expert to compare the thumb impressions of Sardool Singh on the sale deed dated 20.5.1996, in respect of the property in litigation with his thumb impressions on the power of attorney. It is not a matter of dispute that the defendants have set up a plea that Sardool Singh s/o Dalip Singh and Jagir Kaur w/o Hari Singh have executed the indicated sale deed in respect of the disputed property in favour of Hari Singh son of Fateh Singh, who further sold it, vide sale deed dated 31.5.1999 to Pargat Singh s/o Inder Singh. He further sold it to Malook Singh defendant No.2, by means of sale deed dated 1.2.2007.
9. The learned counsel for petitioner has contended with some amount of vehemence that in fact, Sardool Singh and Jagir Kaur have not executed any sale deed dated 20.5.1996 in favour of Hari Singh in respect of the property in dispute, which is the basis of claim of the defendants in their written statement. The main ground, which appears to have been weighed with the trial Court to dismiss the application of plaintiff, was that he has availed sufficient opportunities to prove his case & closed his evidence in affirmative and he cannot be allowed to examine the Handwriting & Finger Print Expert in rebuttal evidence. Concededly, the burden of proof of issues No.3 and 4 was on the defendants, where question of validity and genuineness or otherwise of the sale deed in question is involved. In that eventuality, to me, the comparison of thumb impressions of Sardool Singh on the alleged sale deed was essential to decide the real controversy between the parties and is the legal requirement of fair trial. If adequate Arvind Kumar Sharma 2014.03.13 14:03 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.1770 of 2014 (O&M) 4 opportunities are not granted to plaintiff, then, it will inculcate and perpetuate injustice to his case.
10. Taking into consideration the fact that the burden of proof of issues No.3 & 4 was on the defendants and nature of litigation, the trial Court ought to have granted at least one opportunity to petitioner-plaintiff to produce the Handwriting & Finger Print Expert to compare the thumb impressions of Sardool Singh with his thumb impressions on the power of attorney. Moreover, no prejudice was going to be caused to the defendants, particularly when, they could well be compensated with adequate costs in this relevant connection.
11. In the light of aforesaid reasons, the instant revision petition is partly accepted. Consequently, the impugned order (Annexure P2) is hereby set aside. The trial Court is directed to permit the plaintiff to produce the Handwriting and Finger Print Expert to compare the thumb impressions of Sardool Singh on the sale deed with his thumb impressions on the indicated power of attorney in Court. However, this would be subject to payment of ` 10,000/- (rupees ten thousand) as compensatory costs, to be paid by the plaintiff to the defendants personally. Needless to mention that the payment of costs would be a condition precedent for further prosecution of suit.
12. Above-all, the present order has been rendered in exercise of extra ordinary power of this court under Article 227 of the Constitution of India, only in the peculiar facts and in the special circumstances of this case and would not be relevant precedent, in any manner, in any other case.
Sd/-
(Mehinder Singh Sullar) 10.3.2014 Judge AS Arvind Kumar Sharma 2014.03.13 14:03 I attest to the accuracy and integrity of this document Chandigarh