Civil Revision No. 5505 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5505 of 2008 Date of decision: 29.04.2009. Smt. Kamla Petitioner Versus Pankaj ...Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Vikram Punia, Advocate for the petitioner. Mr. Ramesh Hooda, Advocate for the respondent. ***** S.D.ANAND, J. This is defendant's revision against the order dated 8.9.2008 vide which the plaintiff-respondent was allowed to adduce evidence in rebuttal of the evidence adduced by the defendant- petitioner under issue no.2. On the pleadings of the parties, the following issues were framed by the learned Trial Court:- i) Whether defendant executed an agreement for sale of the suit land in favour of plaintiff on 11.2.2004 and plaintiff is entitled to decree for possession as well as specific performance of the agreement by making payment of remaining sale consideration and other expenses? OPP Civil Revision No. 5505 of 2008 -2- **** ii) Whether suit is false and vexatious in view of the preliminary objections No.1? OPD iii) Whether plaintiff has no cause of action to file the present suit ? iv) Relief” The plaintiff-respondent had otherwise filed a suit for the possession, by way of specific performance of the land in suit. The essential premise of the claim was that the defendant-petitioner had entered into an agreement dated 11.2.2004 to sell the land in suit to the plaintiff-respondent on the terms and conditions indicated in the course thereof. The defendant-petitioner had denied the execution itself of the impugned agreement and had raised a plea that it was a result of fraud. By the very nature of things, the essential onus to prove the execution of the impugned agreement was upon the plaintiff- respondent. It was only in rebuttal thereof that the defendant- petitioner was to prove the contrary and adduce evidence in support of the averment that it was all a made up affair and that she did not execute the agreement. Though it is common ground that a plea raised at the trial for deletion of issue no.2 came to be negatived at the hands of the learned Trial Court and that order is unchallenged till date, it cannot be ignored from consideration the essential onus to prove issue no.1 continued to be upon the defendant-petitioner. It was for him to decide whether he had to examine Handwriting and Finger Prints Expert or not. He opted to rely upon the evidence of Civil Revision No. 5505 of 2008 -3- **** scribe and/or attesting witnesses in the relevant behalf. He cannot be heard to raise a claim to adduce evidence in rebuttal on issue no.2 just because defendant-petitioner had examined the Handwriting and Finger Prints Expert in order to discharge the onus under that issue. The allowance of request of the plaintiff-respondent to examine the Handwriting and Finger Prints Expert, as a part of the evidence in rebuttal evidence adduced by defendant-petitioner under issue no.2, obviously amounted to giving him (plaintiff-respondent) to a twin advantage. He did have the opportunity to adduce whatever evidence he wanted to adduce on issue no.1 to prove that the defendant-petitioner had executed the impugned agreement and also the receipt in lieu of the payment of earnest amount. He could very well have, in his own discretion, examined the Handwriting and Finger Prints Expert and get the attributed signatures/thumb impression of the defendant-petitioner compared with her specimen signatures/thumb impression. In the light of the foregoing discussion, the petition shall stand allowed. The impugned order dated 8.9.2008 shall stand set aside. The plaintiff-respondent shall not be entitled to examine the Handwriting and Finger Prints Expert in rebuttal of the evidence in the statement of the Handwriting and Finger Prints Expert examined by the defendant-petitioner. April 29, 2009 (S.D.Anand) Pka Judge