CR No. 1603 of 1994 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 1603 of 1994 (O&M) Date of Decision: 30.01.2009 Surinder Kumar & Ors. ..Petitioners Vs. Prithvi Pal Singh & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.R.S.Bajaj, Advocate, for the petitioners. Mr.B.R.Mahajan, Advocate, for the respondents. --- Vinod K.Sharma,J. (Oral) CM No.17136-CII of 2008 For the reasons stated in the application order dated 28.8.2008 is recalled and the case is restored to its original number. CR No.1603 of 1994 This revision is directed against the order dated 11.4.1994 CR No. 1603 of 1994 (O&M) 2 passed by the learned Rent Controller, Amritsar vide which application moved by the petitioners under Order 18 Rule 17-A of the Code of Civil Procedure (for short the Code), has been ordered to be dismissed. The petitioners herein filed an application under Order 22 Rule 3 of the Code for being impleaded as legal representatives of petitioner No.1 on the basis of Will executed by Smt.Parkash Wati dated 22.10.1974. The application was contested by respondent No.1 who also claimed to be the legal representatives of Smt.Parkash Wati. An issue was framed to the following effect: “Whether the petitioner/applicants were the sole legal heirs of late Smt.Parkash Wati?” In support of the issue the petitioners led evidence to prove the Will by examining scribe and attesting witness, whereas respondent No.1 produced an expert to disprove the Will. After respondent No.1 closed the evidence, an application was made under Order 18 Rule 17-A of the Code for leading additional evidence to rebut the evidence produced by respondent No.1. The application has been rejected by the learned Rent Controller by observing as under:- “ It is well settled proposition that every party is expected to plan as to how he/she intends to prove his/her case by examining various witnesses. The applicant has taken the plea that since the respondent did not file the list of witnesses under Order 16 Rule 1 CPC nor he had mentioned the name of any CR No. 1603 of 1994 (O&M) 3 handwriting expert, as such the applicant could not examine any handwriting and finger print expert to prove the Will of Smt.Parkash Wati. The plea taken by applicant is not only ludicrous, but it is also untenable. The applicant while leading his evidence on the application has examined five witnesses during the period of 14 months which he got for the purpose. It is not the case of the applicant that he could not examine the expert witness despite the exercise of due diligence and that the expert evidence was not within his knowledge or he could not produce him at the time when he was leading the evidence. The grounds taken by the applicant in his application are hollow and without any substance. The pleas taken in the application does not satisfy any ingredient of order 18 Rule 17-A CPC. As such, Rule 17-A of Order 18 CPC cannot be said to have been attracted in the case of the applicant. Accordingly, I am of the considered opinion that the application ought not to be allowed in view of the above discussion, and the application being without any merit, force or substance, is hereby dismissed.” Mr.R.S.Bajaj, learned counsel appearing on behalf of the petitioners contends that the evidence sought to be led by way of additional evidence was necessary for the just and proper adjudication of the application and therefore, learned Rent Controller erred in law in rejecting the application. However, the contention of the learned counsel for the CR No. 1603 of 1994 (O&M) 4 petitioners cannot be accepted, firstly for the reason that the decision on an application for bringing on record the legal representatives cannot operate as res judicata between the parties, in view of the decision of Hon'ble Full Bench of this Court in the case of Mohinder Kaur and Anr. Vs. Para Singh and Ors. AIR 1981 Punjab & Haryana 130, and the judgment of this court in the case of Harbans Singh Vs. Manjit Inder Kaur 2004 (3) PLR 499. Even otherwise, once an issue stood framed and onus was on the petitioners it was for them to produce evidence in affirmative. The petitioners cannot be permitted to lead evidence by way of additional evidence in rebuttal as it cannot be said that the evidence now sought to be produced was not within their knowledge. Even otherwise, once the finding cannot operate as res judicata inter se between the parties regarding dispute with regard to their inter se claims qua tenancy, no error can be found in the order passed by the learned trial court. For the reasons stated this revision is ordered to be dismissed but with no order s to costs. 30.01.2009 (Vinod K.Sharma) rp Judge