Punjab-Haryana High Court
Jaswinder Kaur vs Rajinder Kaur And Others on 5 December, 2023
Neutral Citation No:=2023:PHHC:155436
CR-3810-2023 (O&M) -1- 2023:PHHC:155436
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-3810-2023 (O&M)
Date of Decision:- 05.12.2023
JASWINDER KAUR ...Petitioner
Vs.
RAJINDER KAUR AND OTHERS ...Respondents
CORAM:-HON'BLE MS. JUSTICE AMARJOT BHATTI
Present: Mr. Gagandeep Singh Sirphikhi, Advocate for the petitioner.
Mr. A.S. Shergill, Advocate for Mr. Navjot Singh, Advocate
for respondent No.1.
Mr. Ankush Rampal, Advocate for
Mr. Kushagra Mahajan, Advocate for respondent No.2.
*****
AMARJOT BHATTI, J. (Oral)
CM-18518-CII-2023
Exemption granted subject to all just exceptions.
Application stands disposed of.
CM-18519-CII-2023
This is an application under Section 151 CPC for bringing
certain facts in the notice of this Court by placing on record document
Annexure A-1.
For the reasons mentioned therein, the application is allowed
and the accompanied document is taken on record.
Main case.
1. The petitioner/defendant No.2 has filed revision petition under
Article 227 of Constitution of India for setting aside the impugned order
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dated 22.05.2023 (Annexure P-8) passed by learned Civil Judge (Jr. Divn.),
Batala in Civil Suit No.3212 of 2014 vide which the application filed by
the respondent No.1/plaintiff for taking photographs of the disputed thump
impression/signatures on the alleged power of attorney of Wassan Singh
along with standard signature/thumb impression of Wassan Singh on the
admitted documents.
2. Learned counsel for the petitioner/defendant No.2 has placed
on the record the copy of plaint titled Rajinder Kaur and another Vs. Manjit
Singh and another which is Annexure P-4. The plaintiffs had sought
declaration that the plaintiff No.1 is the owner of 96 kanals of land whereas
plaintiff No.2 is owner in possession of 16 kanals 12 marlas of land
situated in village Tarpala, Tehsil Dera Baba Nanak along with
consequential relief of permanent injunction. They had based their claim on
the basis of registered Will dated 25.10.2012 in their favour and in para
No.2 of the plaint they challenged power of attorney dated 26.11.2012 of
Wassan Singh as a false document which was got prepared by defendant
No.1 Manjit Singh being lawful general power of attorney holder of
Wassan Singh by way of impersonation through Jagir Singh resident of
village Dhanne, who is real brother-in-law of defendant No.2. The plaintiff
further challenged the sale deed dated 12.02.2013 on the basis of said
power of attorney executed by defendant No.1 in favour of defendant No.2.
Therefore, the plaintiffs were clear about their stand taken in the plaint and
they were supposed to lead their evidence in affirmative. After leading
evidence by the petitioner/defendant, the plaintiffs filed application
(Annexure P-6) seeking permission to take photographs of disputed thumb
impression/signature on power of attorney allegedly of Wassan Singh
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along with standard signatures/thumb impression of Wassan Singh on the
admitted documents for the purpose of examination by Handwriting and
Fingerprint Expert. The said application was contested by filing reply
(Annexure P-7). The application was allowed by learned Civil Judge (Jr.
Divn.), Batala by passing impugned order dated 22.05.2023 which is
Annexure P-8. The learned trial Court has failed to consider that the
plaintiffs were required to lead their evidence in affirmative. Later-on, they
cannot be permitted to examine Handwriting and Fingerprint Expert to fill
up the lacuna in the case. To support his arguments, learned counsel for the
petitioner has relied upon the authority of co-ordinate Bench cited in 2015
(11) R.C.R. (Civil) 108 titled as 'Belo Devi Vs. Urmila Devi and others',
relevant para No.13 runs as under:-
"The trial Court has rightly relied upon the binding
precedents of the two Division Bench judgments in Surjit
Singh (supra) and Jagdev Singh (supra) under Order 18, Rule
13 CPC, wherein it has been held that the scope and ambit of
the provisions to lead evidence in rebuttal on issues, the onus
to prove of which is on the plaintiff, would not give a right to
the plaintiffs to produce another handwriting expert, at that
stage. It was noticed that though liberal consideration is to be
given to procedural provisions but by interpretation, it cannot
be amended. The rule concisely provides the parties with an
option to produce evidence in support of the issues or to
reserve it by making a statement to that effect and in the
absence of the same, they could not lead evidence in rebuttal,
as a matter of right."
It is prayed that the impugned order dated 22.05.2023 passed
by learned Civil Judge (Jr. Divn.), Batala is without justification and the
same may kindly be set aside by accepting the present revision petition.
3. On the other hand, learned counsel for the respondent
No.1/plaintiff No.1 pointed out that it was the case of defendants that
Wassan Singh executed general power of attorney dated 26.11.2012 in
favour of Manjit Singh and on that basis he executed valid sale deed dated
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12.02.2013 in favour of defendant No.2 that is the present
petitioner/defendant No.2. Once the defendants led evidence on this point,
thereafter the plaintiffs had a right to lead evidence in rebuttal. Therefore,
the impugned order dated 22.05.2023 passed by Civil Judge (Jr. Divn.),
Batala does not suffer from any illegality or irregularity and it is fully
justified from the facts of the case and the pleadings. Therefore, the
revision petition preferred by the petitioner/defendant No.2 may kindly be
dismissed.
4. I have considered the arguments and have gone through the
record. In order to adjudicate the matter in controversy, pleadings of the
parties are important. The copy of plaint is Annexure P-4 whereby the
plaintiffs have based their claim on the basis of registered Will dated
25.10.2012 allegedly executed by Wassan Singh in their favour and they
have disputed the aforesaid general power of attorney dated 26.11.2012
allegedly executed by Wassan Singh in favour of defendant No.1 and
further challenged the sale deed dated 12.02.2013 executed by defendant
No.1 in favour of defendant No.2 on the basis of alleged disputed general
power of attorney of Wassan Singh. The written statement filed by
defendant No.2 is Annexure P-5. Learned counsel for the
petitioner/defendant No.2 has given detail of issues framed by trial Court in
para No.7 of the petition. The first two issues are regarding the claim of
plaintiffs seeking declaration and permanent injunction. Thereafter, there
are issues No.2 (b) and 2 (c) regarding execution of alleged general power
of attorney by Wassan Singh in favour of defendant No.1 and then
execution of sale deed by defendant No.1 in favour of defendant No.2. The
onus to prove issues No.2(b), 2 (c), 2 (d) and 2 (e) is on the defendants.
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Therefore, once the defendants led evidence on these issues, plaintiffs get a
chance to lead evidence in rebuttal.
Therefore, considering the pleadings and the issues framed in
this case, I do not find any illegality or irregularity committed by the trial
Court by passing impugned order dated 22.05.2023 vide which the plaintiff
No.1 was allowed to examine Handwriting and Fingerprint Expert to
compare the disputed signatures/thumb impression of Wassan Singh on the
power of attorney in dispute with the admitted signatures/thumb impression
of Wassan Singh. In-fact this evidence is necessary for proper final
adjudication of the case. Therefore, finding no merits in the revision
petition filed by the petitioner/defendant No.2 the same is declined by
upholding the impugned order dated 22.05.2023 passed by learned Civil
Judge (Jr. Divn.), Batala.
Pending application (s), if any, also stands disposed of.
05.12.2023 (AMARJOT BHATTI)
snd JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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