Civil Revision No. 209 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 209 of 2008 Date of decision: 27.01.2009 Devki Nandan ...Petiitioner Versus Madan Lal ...Respondent CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Jai Bhagwan, Advocate, for the petitioner Mr. Atul Jain, Advocate for the respondent. ***** S.D.ANAND, J. The plaintiff-petitioner filed a suit for possession, by way of specific performance, of the land under reference. The essential foundational premise for the filing of the suit is the impugned dated dated 26.8.1996. In the written statement, the defendant-respondent raised a plea that impugned agreement was a result of fraud and forgery. Initially, the trial proceeded on the following issues:- “1. Whether plaintiff is entitled to possession of property in dispute and specific performance of contract dated 26.8.1996? OPP 2. Whether suit is not maintainable in the its present form? 3. Whether plaintiff has suppressed true and material facts from Court? If so, its effect? OPD Civil Revision No. 209 of 2008 -2- **** 4. Whether plaintiff is estopped by his own act, conduct, admissions and commissions to file present suit? OPD 6. Relief” It was only on 3.11.2004 that the learned Trial Court framed the following additional issue :- “5-A Whether agreement in question is result of fraud and forgery as alleged? OPD” After conclusion of the evidence of defendant, the plaintiff filed a plea for being allowed to examine the Handwriting and Finger Print Expert. The plea raised thereby is that the evidence adduced would be in rebuttal of the issue No. 5-A, the onus of proof where was on the defendant. The plea was declined by the learned Trial Court by observing that the plaintiff-petitioner ought to have examined evidence of affirmative character earlier and it further held that he cannot be allowed to adduce evidence of affirmative character (which was to adduce at the time of its own evidence) in rebuttal. In support of the plea for invalidation of the impugned order, learned counsel for the petitioner argues that the Trial Court having allowed the plaintiff-petitioner to get the disputed signature photographed at the hands of the Handwriting and Finger Print Expert on 31.10.2007 (Annexure P-3), is estopped from denying the opportunity to the plaintiff-petitioner to examine the Handwriting and Finger Print Expert particularly when the case came to be adjourned for adducing of rebuttal evidence on 29.10.2007 and 7.11.2007 without any objection from the opposite party. The plea raised thereby is that the defendant-respondent had thereby Civil Revision No. 209 of 2008 -3- **** conceded the entitlement of the plaintiff-petitioner to examine the Handwriting and Finger Print Expert. The plea raised on behalf of the plaintiff-petitioner is plainly devoid of merit. It is apparent from the impugned order itself (para 5 thereof) that plaintiff-petitioner did move an application dated 25.10.2004 (when he was adducing evidence of affirmative character) for a direction to the defendant-respondent to give his specimen signature and thumb impression for comparison by the expert “but at that time he did not pursue his that application”. The mere fact that the learned Trial Court allowed the inspection of file and obtaining of photographs by the Handwriting and Finger Print Expert on 31.10.2003 would not estop the Court from obtaining the view under challenge. The plea for inspection of a file comes to be allowed in routine. The mere allowance of inspection of file (by the expert) to obtain the photographs of the disputed signature and thumb impressions would not reflect that the Court had thereby allowed the examination of the expert. It is common ground otherwise that the defendant-respondent did not adduce any evidence on issue No. 5-A inspite of the fact that adequate opportunities were afforded for it and the evidence, ultimately, came to be closed under the orders of the Court on 17.10.2007. It is, thus, apparent that the defendant-respondent disabled himself from adducing evidence in respect of Issue no.5-A. Where does, thus, the question of any evidence in rebuttal arise? It is a poser which defies logical comprehension. That poser would arise only if it is assumed (for the sake of arguments) that the petitioner is entitled to adduce rebuttal evidence. The finding otherwise is that the plaintiff-petitioner was not entitled to adduce any rebuttal evidence when the essential onus to prove the Civil Revision No. 209 of 2008 -4- **** execution of the impugned agreement was on him and he had already adduced evidence of affirmative character in support thereof. In the light of the above discussion, the petition is held to be denuded of merit and is ordered to be dismissed. January 27, 2009 (S.D.Anand) Pka Judge