Civil Revision No.1123 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1123 of 2011 Date of Order: 01.03.2011 Bhajan Singh and anothers ...Petitioners Versus Bhag Singh and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present:Mr. Jaideep Verma, Advocate for the petitioners. RAJIVE BHALLA, J (Oral) The petitioners pray for setting aside the order dated 29.01.2011, passed by the Civil Judge (Junior Division), Rupnagar, allowing the respondents an opportunity to compare the signatures and thumb impressions of the defendants and their witness Harbans Singh. The respondents/plaintiffs filed a suit for specific performance of an agreement to sell dated 10.02.1995. The petitioners/defendants denied the execution of the agreement to sell, the receipt of earnest money and pleaded that the agreement to sell is a forged and fabricated document. The respondents/plaintiffs produced evidence in the affirmative to prove the agreement to sell and thereafter closed their evidence. The petitioners/defendants examined Dr.Jassy Anand Forensic Civil Revision No.1123 of 2011 -2- Consultant as DW1 to prove their plea that the signatures on the agreement to sell are forged. The respondents thereafter filed an application for leading evidence of an expert. The trial court allowed the application vide order dated 29.01.2011. Counsel for the petitioners submits that as respondents/plaintiffs have already closed their evidence in the affirmative, they cannot be allowed to lead the evidence of an expert while leading evidence in rebuttal. It is further contended that as onus to prove due execution of the agreement to sell lies upon the plaintiffs/respondents, they cannot be allowed to lead this evidence in rebuttal. Reliance for the above arguments is placed upon the judgments in Bhure Lal v. Suraj Bhan and another, 2010(4) P.L.R.,130 and The Municipal Corporation of Greater Bombay v. Lala Pancham and others 1965 A.I.R. (SC), 1008. I have heard counsel for the petitioners and express my inability to interfere with the discretion exercised by the trial court. It is true that onus to prove the issue with respect to the execution of the agreement to sell lies upon the respondents/plaintiffs but as the plea of forgery was raised by the petitioners/defendants, the onus to establish this plea, by leading affirmative evidence lies upon the petitioners. In discharge of this onus, the petitioners have led the evidence of an expert. The application filed by the respondents to lead evidence in opposition to the evidence of the expert produced Civil Revision No.1123 of 2011 -3- by the petitioners cannot be said to be evidence in rebuttal. Even otherwise, the Court has also passed an order in terms of Section 165 of the Evidence Act that empowers a Court to summon a witness in order to ensure proper adjudication of a pending lis. A relevant extract from the order passed by the trial court reads as follows:- "I am further of the view that the present application deserves to be allowed for the proper adjudication of the matter in hand so as to ascertain the truthfulness of the statement of defendant who has denied his signatures on the agreement to sell and similarly truthfulness of the statement of DW Harbans Singh who has denied his thumb impression on the agreement to sell as the science of finger prints is a perfect science an I am further of the view that there is no question of any kind of prejudice to the defendants/plaintiffs in case the present application is allowed. Thus, in view of my above discussion I hereby allow the present application." In view of what has been stated hereinabove, the revision petition is dismissed. March 01, 2011 (RAJIVE BHALLA) nt JUDGE