Punjab-Haryana High Court
Bir Kaur Thr Gpa Sukhwinder Kaur vs Kuldeep Singh And Anr on 25 September, 2024
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2024:PHHC:126948
CR-5629-2024 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(128)
CR-5629-2024
Date of Decision: - 25.09.2024
Beer Kaur through her GPA Smt. Sukhwinder Kaur
....Petitioner
Versus
Kuldeep Singh and another
.....Respondents
CORAM : HON'BLE MR. JUSTICE VIKAS BAHL
Present:- Mr. Anupam Bhardwaj, Advocate
for the petitioner.
****
VIKAS BAHL, J. (ORAL)
1. Present revision petition has been filed by the defendant
under Article 227 of the Constitution of India for setting aside the
impugned order dated 13.09.2024 (Annexure P-7) whereby the
application under Section 45 read with Section 73 of the Indian Evidence
Act along with Section 39(1), 72 of The Bharatiya Sakshya Adhiniyam,
2023 (hereinafter referred to as '2023 Act') for granting permission for
comparison of thumb impressions of the petitioner Beer Kaur and
signatures of her attorney Sukhwinder Kaur has been allowed by the trial
Court.
2. Brief facts of the case are that the respondents-plaintiffs
(hereinafter referred to as 'the plaintiffs') had filed a suit for specific
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performance of the agreement to sell dated 04.05.2018 which as per the
case of the plaintiffs was executed by the defendant/petitioner (hereinafter
referred to as 'the defendant') in favour of the present
respondents/plaintiffs with respect to land measuring 49 kanals 10 marlas.
In the plaint, it was stated that the defendant had agreed to sell the land in
question in favour of the plaintiffs for a total consideration of
Rs.54,00,000/- and at the time of the execution of the agreement to sell,
the defendant received Rs.10,00,000/- from the plaintiffs as earnest
money and the sale deed was to be executed on 04.11.2018. In para 2 of
the plaint, it was further averred that on 21.11.2018, with the mutual
understanding between the defendant and the plaintiffs, the date for the
execution of the sale deed was extended up to 25.12.2018 and that an
endorsement was made on the back of the original agreement to sell in the
presence of the witnesses and at that time, the defendant agreed to execute
the sale deed regarding the land in question on 25.12.2018. Further
averments had been made to highlight that the defendant had backed out
from the same and thus, the suit was filed. The defendant filed a written
statement in which pleas were taken that she had never executed any
agreement to sell dated 04.05.2018 and that the extension of time on
21.11.2018 was also not executed by her and that the said endorsement
was a forged and fabricated document. Replication was filed by the
plaintiffs denying the averments made in the written statement.
3. On 09.09.2024, an application (Annexure P-5) was filed by
the plaintiffs under Section 45 read with Section 73 of the Indian
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Evidence Act along with Section 39(1), 72 of the 2023 Act for granting
permission for comparison of thumb impressions of defendant Beer Kaur
and signatures of her attorney Sukhwinder Kaur, with a further direction
to defendant Beer Kaur to come present in the Court for taking a
specimen of her thumb impressions by an expert. In the said application,
it was pleaded that the agreement and the endorsement had been denied
by the defendant and that the attorney of defendant Beer Kaur, her
daughter Sukhwinder Kaur had signed in English on the agreement to sell
(Ex.P1) and had also given her mobile number on the said agreement to
sell and during the course of cross-examination, the said Sukhwinder
Kaur had admitted that the mobile number which has been given was her
mobile number on the agreement to sell (Ex.P1). It was further averred
that for adjudicating the matter in controversy and to bring the truth on
the file, the comparison of the thumb impression of the defendant Beer
Kaur and the signatures of her attorney are very necessary and that since
Sukhwinder Kaur had admitted in her cross-examination that defendant
Beer Kaur is alive at present, thus, it was prayed that she may come to the
Court for giving the specimen of her thumb impressions. A reply was
filed to the said application by the defendant in which it was stated that
the agreement to sell dated 04.05.2018 was never entered into by the
petitioner/defendant and the same was a forged and fabricated document.
4. Learned trial Court considered the entire matter and, on the
request made by counsel for the plaintiffs and in order to avoid delay in
the proceedings, treated the said application as an application for
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additional evidence and, with respect to the same, recorded the statement
of counsel for the plaintiffs. After considering the entire matter, the trial
Court allowed the said application, subject to payment of cost of
Rs.1,000/- and directed the defendant to appear in person in the Court on
23.09.2024. A perusal of the said order would show that it was observed
by the trial Court that the material issue which requires adjudication in the
present case is as to whether the agreement to sell and the endorsement
bear the thumb impressions of defendant Beer Kaur and the signatures of
the attesting witness Sukhwinder Kaur, who was also the power of
attorney of defendant Beer Kaur and thus, the evidence on the said aspect
including the evidence of an expert is very material for the effective
adjudication of the case. It was further observed that although, the said
application had been filed at a belated stage but right of the party to prove
their case cannot be taken away and the said evidence would help the
Court in adjudicating the matter in a proper manner and would also help
for bringing the complete truth on the file. In order to do the justice
between the parties and to be fair to the defendant, a cost was imposed on
the plaintiffs and even the defendant was given an opportunity to rebut
the additional evidence to be led by the plaintiffs. It is the said order
which has been challenged before this Court by the defendant.
5. Learned counsel for the petitioner has submitted that the
onus of proving the agreement to sell in question was on the respondents-
plaintiffs and thus, all necessary evidence should have been led by the
plaintiffs in affirmative and the plaintiffs cannot be permitted to lead
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rebuttal evidence or additional evidence after the evidence of the
plaintiffs as well as the defendant is over. In support of his arguments,
learned counsel for the petitioner has relied upon a judgment of the
Division Bench of this Court in case titled as "Surjit Singh and others
Vs. Jagtar Singh and others", reported as AIR 2007 Punjab and
Haryana 8.
6. This Court has heard learned counsel for the petitioner and
has perused the paper-book and finds that the argument raised by the
learned counsel for the petitioner is meritless and deserves to be rejected.
7. It could not be disputed that the main issue in the present
case is as to whether the agreement to sell dated 04.05.2018 as well as the
endorsement dated 21.11.2018 had been thumb marked by the petitioner
or not and had been signed by a witness Sukhwinder Kaur, who is the
daughter and also the attorney of the petitioner. The plaintiffs, who had
filed a suit for specific performance, had stated that the agreement to sell
dated 04.05.2018 is duly executed, whereas, it is the stand of the
defendant that the said agreement to sell and the endorsement is a forged
and fabricated document. The report of the expert with respect to the
thumb impressions on the agreement to sell and endorsement and the
thumb impression of the petitioner taken from a standard document,
which could best be taken before the Court, would be a very relevant
piece of evidence for deciding the case. The trial Court has thus rightly
observed that the said piece of evidence would help the Court in properly
adjudicating the case and to bring out the complete truth on the file.
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Further the trial Court has balanced the right of the petitioner as well,
inasmuch as, apart from imposing cost, has also given an opportunity to
the defendant to rebut the evidence to be produced by the plaintiffs on the
said aspect. Thus, in case any handwriting expert is produced by the
plaintiffs then apart from cross-examining the said witness, it would be
open to the petitioner to lead her own evidence on the said aspect. In the
said circumstances, this Court finds that the impugned order does
complete justice between the parties and calls for no interference.
8. A perusal of Section 45 read with Section 73 of the Indian
Evidence Act as well as Section 39(1), 72 of the 2023 Act would show
that where the Court has to form an opinion to identifying the handwriting
or thumb impression of a person, then the opinion, upon that point, of a
person, who is an expert in identifying handwriting or thumb impressions
would be relevant and for the said purpose, the Court has the power to
direct any person to write any words or figures to enable the Court to
compare them with the words or figures stated to be written by the said
person. The same would also apply with respect to digital signatures and
would also, as a matter of necessary corollary, apply to thumb imprssions.
The argument raised by the learned counsel for the petitioner on the
aspect of the respondent being granted opportunity to lead rebuttal
evidence with respect to the issue on which onus is on the plaintiffs is
meritless. In this regard, it would be relevant to note that the trial Court
had considered the said application as an application for additional
evidence and had thus also granted an opportunity to the petitioner to
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rebut the additional evidence to be produced by the plaintiffs. Moreover,
in the present case, as is apparent from the order dated 20.04.2023
(Annexure P-4), vide which issues were framed, onus of issues No.5 to 13
is on the defendant. Issue No.12 which is relevant for consideration is
reproduced herein below: -
"12. Whether the endorsement as alleged is forged and
fabricated document/ OPD"
9. The above-said issue which was on the aspect of whether the
endorsement is forged and fabricated or not is on the defendant and thus,
in rebuttal to the evidence produced by the defendant, it would in any way
be open to the plaintiffs to produce rebuttal evidence. Reliance placed
upon the judgment of the Division Bench of this Court in Surjit Singh's
(supra), does not further the case of the petitioner. The relevant para of
the said judgment which has been highlighted is reproduced herein
below:-
27. In our opinion, Order 18, Rule 3 of the CPC would not give a
right to the plaintiff to lead evidence in rebuttal on issues in which the onus of
proof is on the plaintiff. Accepting such an interpretation would be to ignore a
vital part of Order 18, Rule 3 of the CPC. The rule clearly postulates that "the
party beginning, may, at his option, either produce his evidence on these
issues or reserve it by way of answer to the evidence produced by the other
parties". No matter, how liberally a provision in the statute is required to be
interpreted, by interpretation it cannot be amended. Whilst construing a
statutory provision the Court cannot reconstruct it. The rule consciously
provides the parties with an option either to produce the evidence in support
of the issues or to reserve it by making a statement to that effect. The
statement itself may well be liberally construed to avoid any unnecessary
technical obstacles. One such example has been given by the Division Bench in
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the case of Smt. Jaswant Kaur AIR 1983 P & H 210 (supra). It has been held
that if a statement is made by the Advocate for the plaintiff that "the plaintiff
closes its evidence in the affirmative only", the same would be read to mean
that the plaintiff had reserved its right to lead evidence in rebuttal."
10. A perusal of the above-said judgment would show that it has
specifically been stated that as per Order 18 Rule 3 of CPC, an option is
given to the parties either to produce the evidence in support of the issues
or to reserve it by making a statement to that effect and in case such a
statement is made, then the same has to be liberally construed to avoid
any unnecessary technical obstacles and in case the plaintiff closes his
evidence in the affirmative, then the same is to be read as the plaintiff has
reserved his rights to lead evidence in rebuttal. A perusal of the paper-
book would show that no order has been produced to show that as to on
the date when the evidence was closed by the plaintiffs, whether they had
closed their evidence in the affirmative or not and as to whether they had
reserved their rights or not. In the absence of the said document, it cannot
be argued on behalf of the petitioner that no right to the said effect was
reserved by the plaintiffs or the evidence of the plaintiffs was not closed
in the affirmative.
11. At any rate, this Court is of the opinion that the trial Court
has rightly considered the said application as an application for additional
evidence and the impugned order has been passed in order to do complete
justice between the parties and thus, the same deserves to be upheld and
does not call for any interference by this Court under Article 227 of the
Constitution of India and the present revision petition being meritless,
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deserves to be dismissed and is accordingly dismissed.
( VIKAS BAHL )
September 25, 2024 JUDGE
naresh.k
Whether reasoned/speaking? Yes
Whether reportable? Yes
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