Reshma Bai vs Jagtar Singh & Ors
2022 Latest Caselaw 7654 P&H

                            202

                                       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                      CHANDIGARH

                                                                           CR-6924-2015 (O&M)
                                                                           Reserved on : 13.07.2022
                                                                           Date of decision : 25.07.2022


                            Smt. Reshma Bai                                                    .....Petitioner

                                                              versus

                            Jagtar Singh and Others                                         .....Respondents



                            CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                            Present :      Mr. Aditya Jain, Advocate for the petitioner.

                                           Mr. Kul Bhushan Sharma, Advocate for the respondents.

                            ALKA SARIN, J.

The present revision petition has been preferred by the plaintiff-

petitioner challenging the order dated 15.09.2015 (Annexure P-1) whereby

the application filed by the defendant-respondents for adducing additional

evidence was allowed.

The brief facts relevant to the present lis are that the plaintiff-

petitioner filed a suit for possession by way of specific performance on the

basis of an agreement to sell dated 29.07.2008. The defendant-respondent

No.1 filed a separate written statement and a joint written statement was

filed by defendant-respondent Nos.2 and 3. The defendant-respondent

Nos.2 and 3 took a specific plea in their written statement that they had

never thumb-marked and never executed the agreement to sell and that the

agreement to sell and the receipt were forged. Thereafter, after completion

of the pleadings and before the framing of issues, counsel for the defendant- YOGESH SHARMA 2022.07.25 18:12 I attest to the accuracy and authenticity of this order/judgment.

Chandigarh respondents stated at the Bar that the agreement to sell and the receipt did

not bear the thumb-impressions of the defendant-respondents and, hence, he

wanted to get the same compared from the Government Agency. Vide order

dated 28.07.2010 the application was allowed and the thumb-impressions of

the defendant-respondents were sent to the FSL, Madhuban for comparison.

The report of the FSL, Madhuban was received by the Court and the

defendant-respondents filed objections to the report as also cross-examined

the Handwriting Expert, Ramesh Chand, who appeared as PW-9. The cross-

examination was conducted by the counsel for the defendant-respondents

assisted by one Naresh Kataria, Handwriting and Fingerprint Expert,

Gurgaon. Thereafter, the evidence was led by the plaintiff-petitioner and the

defendant-respondents. The evidence of the defendant-respondents was

closed by order on 13.08.2015 and the matter was adjourned for rebuttal

evidence and arguments. On the date when the case was fixed for

arguments, an application was filed by the defendant-respondents under

Section 151 of the Code of Civil Procedure, 1908 (CPC) for adducing

additional evidence to examine Naresh Kataria, Handwriting and Fingerprint

Expert, Gurgaon on the ground that Naresh Kataria was to appear in Court

and to give his evidence on 13.08.2015, however, his blood pressure shot up

and he could not attend the Court. Reply was filed by the plaintiff-petitioner

contesting the said application. The Trial Court vide the impugned order

dated 15.09.2015 (Annexure P-1) allowed the said application.

Learned counsel for the plaintiff-petitioner would contend that

the defendant-respondents had already availed the opportunity for getting the

thumb-impressions compared from a Handwriting Expert inasmuch as on

their asking the thumb-impressions were sent to the FSL, Madhuban by the YOGESH SHARMA 2022.07.25 18:12 I attest to the accuracy and authenticity of this order/judgment.

Chandigarh Trial Court. The fees was also deposited by the defendant-respondents

themselves by moving an application dated 13.08.2010. It is further the

contention that there was a specific denial in the written statement filed by

defendant-respondent Nos.2 and 3 that the thumb-impressions on the

agreement to sell and the receipt were not theirs and in view thereof the

defendant-respondents ought to have led their evidence and the evidence of

the Fingerprint Expert. However, having failed to lead their evidence, the

present application has been filed for filling up the lacuna in the case. In

support of his arguments, learned counsel for the plaintiff-petitioner has

relied upon the judgments of this Court in the cases of Smt. Daljit Kaur Vs.

Smt. Amarjit Kaur & Anr. [CR No.4940 of 2014 decided on 28.10.2014];

Bhim Raj Vs. Jai Bhagwan [2000(3) RCR (Civil) 16]; Tarlok Singh Vs.

Sohan Singh [2000(1) RCR (Civil) 723] and Atma Singh & Anr. Vs.

Bhupinderpal Singh & Ors. [2010(24) RCR (Civil) 910].

Per contra, learned counsel for the defendant-respondents has

contended that the Trial Court has the right to recall its order and to permit

re-examination of a witness. It is further the contention that the Handwriting

Expert was to appear in Court on 13.08.2015, however, due to a medical

issue he could not appear. In support of his contentions, learned counsel for

the defendant-respondents has relied upon the judgment by the Supreme

Court in the case of K.K. Velusamy Vs. N. Palanisamy [2011(11) SCC

275] and the judgments of this Court in the cases of Sanjay Kumar Vs.

Vinod [2013(21) RCR (Civil) 332] and Krishan Kumar Sardana Vs. Sita

Ram Adlakha [2009(4) RCR (Civil) 334].

Heard.

In the present case there was a specific denial in the written YOGESH SHARMA 2022.07.25 18:12 I attest to the accuracy and authenticity of this order/judgment.

Chandigarh statement of defendant-respondent Nos.2 and 3 qua the thumb-impressions

on the agreement to sell as well as the receipt. Having taken a stand that the

agreement to sell and the receipt were forged documents and that the thumb-

impressions were not those of the defendant-respondent Nos.2 and 3, it was

incumbent upon the defendant-respondents to prove the same by leading

cogent evidence. On 28.07.2010, when on the oral request of the defendant-

respondents the Trial Court allowed the comparison of the thumb-

impressions of the defendant-respondents with those on the agreement to sell

and the receipt by the FSL Madhuban, issues were also framed. Issue No.5

reads as under :

"5. Whether the agreement to sell and receipt do not

compare the thumb-impression of defendants and are

illegal, fraud and forged ? OPD"

A perusal of the issue as framed reveals that the onus of the said

issue was on the defendant-respondents. The defendant-respondents failed to

produce any Handwriting Expert and despite various numerous opportunities

they did not lead their complete evidence and their evidence was closed by

order dated 13.08.2015. The defendant-respondents chose not to challenge

the order dated 13.08.2015 closing their evidence. Instead they chose to file

an application for leading additional evidence.

This Court in the case of Smt. Daljit Kaur (supra) has held as

under :

"Thus, all these judgments, relied upon by learned

counsel for the respondent are relating to leading of

documentary evidence which were more or less per se

admissible in evidence unlike the evidence which is YOGESH SHARMA 2022.07.25 18:12 I attest to the accuracy and authenticity of this order/judgment.

Chandigarh sought to be produced by way of additional evidence in

the present case in the form of oral evidence by

examining Gurmeet Singh son of Surinder Singh

Lambardar to prove the signatures of his father who

alleged to have attested the Will and also by producing

on record the report and examining the Handwriting

and Fingerprint Expert to prove signatures of Surinder

Singh Lambardar, which could have been done by

defendant no.1 at the time of leading her evidence in

affirmative or if she was so aggrieved, could have

challenged the order of closure of her evidence by way

of revision to avail an opportunity for leading the said

oral evidence but in any case, keeping in view the facts

and circumstances of the present case, such kind of oral

evidence cannot be allowed to be led by way of

additional evidence especially when the case was fixed

for pronouncement of order, after having been argued

on the basis of the evidence on record, to fill up the

lacuna left by defendant no.1 in her evidence."

In the case of Bhim Raj (supra), this Court has held as under :

"6. In the present case as well, the evidence of the

defendants was closed by the court order and this order

was not challenged by the defendants by way of revision

or otherwise and the said order has become final.

Thereafter the defendants could not be allowed to

produce same evidence by way of additional evidence YOGESH SHARMA 2022.07.25 18:12 I attest to the accuracy and authenticity of this order/judgment.

Chandigarh without bringing their case strictly within the provisions

of Order 18 Rule 17-A, Civil Procedure Code. In the

present case, there is nothing on record to show that the

defendants could not produce their evidence inspite of

exercise of due diligence. Under these circumstances,

the petitioner would not be entitled to produce the

additional evidence at this stage."

The judgments relied upon by learned counsel for the

defendant-respondents are not applicable to the facts of the present case

inasmuch as in the case of Sanjay Kumar (supra) the challenge was to the

order directing closure of the evidence and that is not the case in the present

revision petition. In fact, admittedly, the order closing the evidence of the

defendant-respondents has never been challenged. The proposition of law

laid down in the cases of K.K. Velusamy (supra) and Krishan Kumar

Sardana (supra) is well established that the inherent powers of the Court

under Section 151 of CPC can be invoked in appropriate cases to re-open the

evidence and to recall witnesses for further examination. However, in the

present case the defendant-respondents already availed an opportunity by

getting the thumb-impressions compared by the FSL, Madhuban which is a

Government Agency. Cross-examination was also conducted of PW-9,

Fingerprint Expert from the FSL Madhuban. The application filed by the

defendant-respondents for leading additional evidence at the time when the

matter was fixed for arguments is bereft of any details. Issue No.5, as

reproduced above, was framed on 28.07.2010 and the defendant-respondents

were required to lead their evidence in the affirmative qua the said issue.

Having failed to lead their evidence, the defendant-respondents cannot now YOGESH SHARMA 2022.07.25 18:12 I attest to the accuracy and authenticity of this order/judgment.

Chandigarh be permitted to fill up the lacuna in the case.

In view of the above, the present revision petition is allowed,

the impugned order dated 15.09.2015 (Annexure P-1) is set aside and the

application for additional evidence filed by the defendant-respondents stands

dismissed. Pending applications, if any, also stand disposed off.

                                                                                  ( ALKA SARIN )
                            25.07.2022                                                JUDGE
                            Yogesh Sharma

NOTE : Whether speaking/non-speaking : Speaking Whether reportable : YES/NO

YOGESH SHARMA 2022.07.25 18:12 I attest to the accuracy and authenticity of this order/judgment.

Chandigarh