Sunil Kumar vs Naresh Kumar (Since Deceased) ...
2023 Latest Caselaw 3343 P&H

                            CR No.4812 of 2019                   -1-                    2023:PHHC:048603

                             IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                            207                                          CR No.4812 of 2019
                                                                         Date of Decision : 10.04.2023

                            Sunil Kumar                                                       ....Petitioner

                                                              VERSUS

                            Naresh Kumar (since deceased) through LRs                      ....Respondents

                            CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

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

                                        Mr. Vishal Yadav, Advocate for the respondents.

                            ALKA SARIN, J. (Oral)

The present revision petition has been preferred by the

defendant-petitioner challenging the order dated 15.05.2019 whereby the

application for additional evidence moved by the plaintiff-respondents has

been allowed.

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

respondents herein filed a suit for possession by way of specific performance

of agreement to sell dated 20.01.2015 qua the land measuring 21 kanals 17

marlas situated in the revenue estate of village Kulana, Tehsil and District

Jhajjar. Vide order dated 23.08.2017 the evidence of the plaintiff-

respondents was closed by order since the plaintiff-respondents failed to

conclude the evidence. The said order was never challenged by the plaintiff-

respondents. Subsequently, an application was filed under Section 151 of the

Code of Civil Procedure, 1908 for examining a handwriting and fingerprint

expert and for taking the signatures of the defendant-petitioner in Hindi. The

said application (Annexure P-2) states that though the fingerprint expert had

earlier submitted his report and had compared the disputed signatures with

the admitted signatures, however, the signatures were not given by the JITENDER KUMAR 2023.04.11 09:26 I attest to the accuracy and integrity of this order/judgment.

Chandigarh
                             CR No.4812 of 2019                       -2-                    2023:PHHC:048603

defendant-petitioner in the presence of the plaintiff-respondents and that the

signatures marked A1 to A5 mentioned in the report were not the admitted

signatures of defendant-petitioner. Vide the impugned order dated

15.05.2019, the application was allowed. Aggrieved by the said order, the

present revision petition has been filed.

Learned counsel for the defendant-petitioner would contend

that once the evidence of the plaintiff-respondents was closed by order and

the same was never challenged, by filing the present application for

additional evidence the plaintiff-respondents want to set at naught the order

closing the evidence. To buttress his argument, he has relied upon judgments

of this Court in the cases of Chand Singh vs. Naranjan Singh & Anr.

[1990 (1) SimLJ 292] and Saroj vs. Charan Singh & Ors. [2018 (5) RCR

(Civil) 771].

Per contra, learned counsel for the plaintiff-respondents states

that the earlier report of the handwriting and fingerprint expert though refers

to the admitted signatures, however, the admitted signatures referred to in

the report were not taken in the presence of the plaintiff-respondents. As

such, the necessity of filing the application for additional evidence.

I have heard learned counsel for the parties.

In the present case, admittedly, the evidence of the plaintiff-

respondents stood closed by a Court order on 23.08.2017. The plaintiff-

respondents chose not to challenge the said order which attained finality.

Subsequently, without so much as challenging the order dated 23.08.2017,

an application was filed under Section 151 CPC for examining a handwriting

and fingerprint expert for comparing the disputed signatures of the

defendant-petitioner on the agreement to sell with the admitted signatures of JITENDER KUMAR 2023.04.11 09:26 I attest to the accuracy and integrity of this order/judgment.

Chandigarh
                             CR No.4812 of 2019                       -3-                     2023:PHHC:048603

the defendant-petitioner herein. It is not disputed that earlier the handwriting

and fingerprint expert, Deepak Sharma, was examined by the plaintiff-

respondents and he has also submitted his report dated 15.11.2017 in which

he is stated to have compared the disputed signatures marked D1 to D3 with

the admitted signatures of the defendant-petitioner marked A1 to A5.

This Court in case of Chand Singh (supra) has held as under :

"4. After hearing the learned counsel for the petitioner, I do not find any merit in this revision petition. It is the case where the evidence of the plaintiff was closed by Court order which was never challenged by him. Now by making this application for additional evidence, the plaintiff seeks to set at naught the said order and, therefore, the application has been rightly dismissed by the trial Court."

In the case of Saroj (supra), it was held as under :

"6. The counsel appearing for the contesting respondents urges that the suit was not contested by the mother and the other brothers and sisters and only defendants no.2 to 5 contested the case and were represented by the same counsel and joint written statement was filed and they were given six opportunities to lead evidence and their evidence was closed and that order was not challenged and when the case was fixed for rebuttal and arguments that the application was filed. The counsel submits that the claim made by the applicant that she was residing in a different village and her counsel had intimated and sent a letter at a different village stands falsified as in the title itself both the addresses are mentioned and the application had been filed through another counsel. The counsel submits that the defendant had taken a stand that the Will was forged and fabricated and they knew of JITENDER KUMAR 2023.04.11 09:26 the evidence they had to lead and when the order I attest to the accuracy and integrity of this order/judgment.

Chandigarh CR No.4812 of 2019 -4- 2023:PHHC:048603

closing evidence had not been challenged they could not be permitted to lead additional evidence.

7. In Bhim Raj and others v. Jai Bhagwan and others 2000(2) LJR 469 (P&H) it was held that when an order by the court closing the evidence of defendants is passed the order became final being unchallenged. It was held that the defendants could not be allowed to produce some evidence by way of additional evidence without bringing their case within the provisions i.e. in spite of exercise of due diligence.

8. In Chand Singh v. Naranjan Singh and another 1990(1) LJR 719 (P&H) it was held that evidence closed by court order was never challenged and by making application for additional evidence, the plaintiff sought to set at naught the said order and the prayer was declined.

9. The lower Court notices the fact that the defendants had availed six opportunities for leading evidence and their evidence was closed in February 2010. The case had been adjourned for rebuttal and arguments several times and thereafter, that application was moved. The applicant had failed to point out that when she had got the information about the suit filed by their father in 1972. The applicant did not even mention the date on which she had got the records inspected. They did not even place on record when the copies of the civil suit had been applied for. It appears that the application had been moved with a view to get the case reopened and avail another opportunity to lead evidence. Since the applicant had failed to challenge the order closing the evidence, therefore, they could not be permitted to lead additional evidence. It is also a case where the applicant had failed to exercise due diligence. I see no infirmity in the order."

JITENDER KUMAR 2023.04.11 09:26 I attest to the accuracy and integrity of this order/judgment.

Chandigarh
                             CR No.4812 of 2019                   -5-                  2023:PHHC:048603

The plaintiff-respondents not having challenged the order dated

23.08.2017 closing the evidence by a Court order cannot now, by filing the

present application, set at naught the order dated 23.08.2017 without so

much as laying a challenging to the same. There is also no explanation

coming forward as to why a second report is required when the report of the

handwriting expert is already on the record.

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

The application (Annexure P-2) stands dismissed. The impugned order dated

15.05.2019 is accordingly set aside. Pending applications, if any, also stand

disposed off.

                                                                                      ( ALKA SARIN )
                            10.04.2023                                                    JUDGE
                            jk

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

JITENDER KUMAR 2023.04.11 09:26 I attest to the accuracy and integrity of this order/judgment.

Chandigarh