C.R. No. 5141 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 5141 of 2009 Date of Decision: 20.10.2009 1. Gulraj Singh; 2. Amarjit Singh; 3. Gurinderjit Singh; sons of Paul Singh, r/o Village Jhinger Kalan, Tehsil Dasuya, District Hoshiarpur, through Sh. Pal Singh Dhami, s/o Mohan Singh, r/o village Jhinger Kalan, Tehsil Dasuya, District Hoshiarpur, attorney of the petitioners. ... Revision-Petitioners Versus 1. Sansar Singh; 2. Sewa Singh; sons of Harnam Singh; 3. Chanan Singh; 4. Puran Singh; 5. Sadhu Singh; 6. Teja Singh; sons of Chanda Singh; 7. Mohinder Singh son of Swaran Singh; all residents of village Hardo Patti Baraich (Jia Sahota), Tehsil Dasuya, District Hoshiarpur. ...Respondents C.R. No. 5141 of 2009 2 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Parveen Kumar, Advocate, for the revision-petitioners. Mr. R.K. Joshi, Advocate, for respondents No. 1 and 2. Respondent No. 4, already exparte. Respondents No. 3, 5, and 6, have since demised. Respondent No. 7, proforma respondent. SHAM SUNDER, J. * * * * This revision-petition under Article 227 of the Constitution of India, is directed, against the order dated 11.08.09, rendered by the Court of Civil Judge (Junior Division), Dasuya, vide which, it dismissed the application of the plaintiffs, for allowing the Handwriting and Finger Prints Expert, to obtain the photographs of the thumb impressions, on the alleged Will dated 07.06.88, exhibit D1, and on the registered general power of attorney dated 01.01.86, attached with the mutation file, as well as, on the duplicate original power of attorney, from the office of the Sub Registrar, Dasuya, and thereafter, to examine him. 2. During the pendency of the suit for declaration, filed by the plaintiffs/revision-petitioners, they moved an application, for allowing the Handwriting and Finger Prints Expert, to compare the questioned thumb impressions, on the aforesaid documents of Pritam Kaur C.R. No. 5141 of 2009 3 (deceased), with her standard thumb impressions. That application, was dismissed, vide the order impugned. 3. Feeling aggrieved, the instant, revision-petition, has been filed,by the revision-petitioner. 4. I have heard the Counsel for the parties, and have gone through and perused the documents, on record, carefully. 5. The Counsel for the revision-petitioners, submitted that the Will dated 07.06.88, was set up by the defendants/respondents. He further submitted that the said Will, was a forged document. He further submitted that the onus, to prove this Will, was upon the defendants/respondents, and only, in rebuttal evidence, the evidence of the Handwriting and Finger Prints Expert, could be produced, by the plaintiffs/revision-petitioners, to prove, that the questioned thumb impressions of Pritam Kaur (deceased), on the Will, did not tally with her standard thumb impressions. He further submitted that the Court below, was wrong, in coming to the conclusion, that such an evidence, could only be produced, in affirmative. He further submitted that the order impugned, being illegal, was liable to be set aside. 6. On the other hand, the Counsel for the respondents, submitted that the evidence, in rebuttal, was closed by the plaintiffs/revision-petitioners, as is evident, from para No. 5 of the grounds of revision, in which, the statement dated 09.09.06, made by the Counsel for the plaintiffs, is reproduced. He further submitted that the order, being legal and valid, was liable to be upheld. C.R. No. 5141 of 2009 4 7. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the revision-petition, deserves to be accepted, for the reasons to be recorded, hereinafter. The perusal of the documents, on record, shows that issue No. 2, which was struck, by the Court below, was “Whether deceased Pritam Kaur, executed a legal and valid Will dated 07.06.88, in favour of defendants No. 1 and 2? If so, its effect”. The onus, to prove, this issue, was on the defendants/respondents. The defendants/respondents, led evidence. It was after the closure of the evidence of the defendants/respondents, that the plaintiffs/revision- petitioners, could lead evidence, in rebuttal, to prove, that the Will, in question, was not executed by Pritam Kaur, and did not bear her thumb impressions, but, on the other hand, it was a forged and fabricated document. It was not that the plaintiffs/revision-petitioners, wanted to lead evidence, in rebuttal, in respect of an issue, of which, the onus lay upon them. Had that been the case, the matter would have been different. The trial Court, was, thus, wrong in holding, that the evidence, was required to be produced, by the plaintiffs/revision- petitioners, in affirmative. On the other hand, this Court, is of the considered opinion, that such an evidence, could only be produced, in rebuttal. It appears that, in ground No. 5 of the revision-petition, the statement of the Counsel for the plaintiffs/revision-petitioners, was not properly reproduced. On the other hand, from the order impugned, it is evident, that the case, was fixed for rebuttal evidence, when the C.R. No. 5141 of 2009 5 application, on which, the order impugned, was passed, was filed, for examining the Handwriting and Finger Prints Expert. Wrong reproduction of the statement dated 05.09.06, made by the Counsel for the plaintiffs/revision-petitioners, in the trial Court, in the grounds of revision-petition, could not rebut the factual position. 8. The order impugned, therefore, suffers from illegality, material irregularity, and perversity, warranting the interference of this Court, in its revisional jurisdiction, under Article 227 of the Constitution of India, and is liable to be set aside. 9. For the reasons recorded above, the revision-petition, is accepted. The order impugned is set aside. The application, in question is allowed. 20.10.2009 SHAM SUNDER) Amodh JUDGE