Civil Revision No.5150 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5150 of 2010 (O&M) Date of Decision 15.02.2011 Rai Singh Jhinja ...... Petitioner VERSUS Om Parkash ...... Respondent CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.S.K.Arora, Advocate, for the petitioner. Mr.Suresh K.Anoja, Advocate, for the respondent. ***** A.N.JINDAL, J: This petition assails the order dated 06.08.2010, passed by the Civil Judge (Junior Division), Fazilka, dismissing the petition, preferred by the defendant-petitioner (herein referred as 'the defendant' ) to examine the handwriting and finger print expert in rebuttal to the evidence led by the plaintiff-respondent (herein referred as 'the plaintiff'). The suit filed by the plaintiff is for recovery of Rs.1,23,000/- on the basis of promissory note and receipt dated 22.01.1998. The case has a chequered history. During the pendency of the suit, in Civil Revision No.188 of 2010, this Court was pleased to grant one opportunity to the plaintiff to take photographs of the disputed signatures of Sh.Laxmi Narain on the alleged promissory note and receipt and for giving in evidence his opinion on the basis of comparison of the disputed signatures with the admitted signatures. In compliance of the aforesaid order, the plaintiff Civil Revision No.5150 of 2010 2 summoned Anil Kumar Gupta, Handwriting Expert, who appeared in the Court and tendered his report. The defendant raised objection to his testimony while urging that the plaintiff cannot be allowed to lead affirmative evidence in the garb of rebuttal evidence. The said objection was kept open, to be decided on merits. However, this Court disposed of the petition, directing the trial Court to dispose of the said objection after hearing the parties at the first instance. It would be pertinent to mention here that at the time when the case was fixed for the evidence of the plaintiff, he moved an application on 08.04.2008 for examination of the expert witness for the purpose of comparison of signatures of defendant from the relevant documents i.e. standard signatures, however, the said application remained undecided. The case of the plaintiff is that since he has been urging for examination of the expert at the time he led the evidence in affirmative, if that application remained undecided, that does not amount to shutting his mouth and he cannot be said to have closed his evidence. He has further urged that since the Hon'ble High Court had already granted him the permission to examine the expert, therefore, he cannot be debarred to lead evidence in rebuttal also. Even otherwise, the evidence to be led by him is not evidence in affirmative but in rebuttal to the evidence led by the defendant which is permissible. Since the application filed by the plaintiff was pending since earlier i.e. 08.04.2008 when it was his turn to lead evidence and it remained undecided, therefore, the plaintiff cannot be said to have given up his right to examine the hand-writing expert in affirmative. It was bounden duty of the Court to decide the said application at the time of closing his evidence in Civil Revision No.5150 of 2010 3 affirmative i.e. on 06.10.2008. Anyway, the defendant did not disclose as to what sort of evidence he would lead on the issues, the onus of which was upon him. If some documents or the expert has been examined by him without prior knowledge of the defendant then he has right to rebut the same. Similar observations were made in case Ranjit Singh versus Mehfil Restaurant 2008 (1) RCR (Civil) 768 where this Court while relying upon the judgments delivered in case Kashmir Kaur versus Bachan Kaur 2000 (2) RCR (Civil) 133, M/s Punjab Steel Corporation, Batala versus M.S.T.C. Limited, Calcutta 2001 (4) RCR (Civil) 565, Kewal Singh versus Jagjit Singh 2007 (4) RCR (Civil) 631 and in Civil Revision No.4087 of 2006 Jai Narain versus Satya Narain and others, decided on 27.08.2007, observed as under:- “This Court in Kashmir Kaur's case (supra) while dealing with the issue where rebuttal evidence should be permitted, opined as under:- “The view that has been taken by this court in the matter otherwise also appears to be in consonance with the provisions of Code of Civil Procedure as well. Order 18 deals with examination of witnesses, By virtue of Rule 1 of Order 18, plaintiff has the right to begin unless the defendant admits the facts alleged by him. As per rule 2 of Order 18, on the day fixed for hearing of the suit or any other day to which the hearing is adjourned, the party having the right to begin has to state his case and produce evidence in support of the issues which he is bound to prove. Rule 2 of Order 18 further provides that the other party can then state his case and produce his evidence and may then address the Court generally on the whole case. By virtue of Rule 3 of Order 18, the party beginning may then reply generally on the whole case. Civil Revision No.5150 of 2010 4 The provisions of Order 18 do, thus, prescribe the procedure of recording evidence which in turn entails a right of plaintiff to lead evidence in rebuttal, even with regard to an issue, onus whereof was initially upon him. The procedure prescribed for recording evidence, as envisaged in Order 18, is based upon common sense. Insofar as plaintiff is concerned, while examining his evidence, in affirmative, he has no idea as to by which evidence, the defendant is to rebut his evidence, whereas the defendant, while leading his evidence, knows exactly what evidence has been led by the plaintiff and by which evidence he has to rebut the same. The defendant is, thus, permitted to lead evidence with regard to whole case which right has been given to the plaintiff by way of rebuttal i.e. he too can address on the entire case. The whole case mentioned in various rules of Order 18 does include in its sweep, the issues onus whereof is upon the plaintiff. At this stage, it may be relevant to mention that this is law of pleadings as well. When the plaintiff files a suit, defendant knows what exactly has been disclosed therein. He is, thus, given a right to file written statement wherein he may not only answer the pleadings made in the plaint but may also press into service additional pleas which can entail dismissal of the suit. The plaintiff is then given a right to file replication and the same is not confined only to additional pleas taken in the written statement. The plaintiff has also right to file reply to the written statement as a whole.” In M/s Punjab Steel Corporation, Batala's case (supra) this Court opined as under:- “Plaintiff could not be barred from adducing evidence to rebut the evidence led by the defendants on issues No. 3, 4 and 5. Plaintiff could not be barred from leading evidence by way of reply generally on the whole case. While leading their evidence, the defendants led Civil Revision No.5150 of 2010 5 evidence to prove issues No. 3, 4 and 5. In addition, they led evidence to disprove issues No.1 and 2. Plaintiff had to be given an opportunity to rebut the evidence led by the defendants on these two aspects of the case. These of the words in Order 18 Rule 3 CPC, that the party beginning will then be entitled to reply generally on the whole case, “suggests that while leading rebuttal evidence, the plaintiff can lead evident to rebut the evidence led by the defendants on the issues, the onus of which lay on him plus to rebut the evidence which defendants to rebut the evidence led by the plaintiff on the issues, the onus of which lay on the plaintiff.” In Kewal Singh's case (supra), this Court has opined as under:- “The plaintiff though had been negligent in leading the evidence in affirmative which he wants to produce now but for such a lapse the other side can well be compensated with costs. At the same time it is basic rule of law that wherever ends of justice demand, the procedural law should be construed liberally to achieve such ends rather than to scuttle the parties right at the trial stage and prevent them from leading complete evidence in support of their case. This would be more true in the cases where such evidence relates to the basic issue to be determined by the Court. The plaintiff- respondent does not stand to gain by delaying the matter as it is his suit for recovery of money. Moreover, no prejudice is shown to have been caused to the defendant by allowing the said application by the learned trial court, who obviously has an opportunity to cross- examine the witness, so produced by the plaintiff in rebuttal. The High Court would not interfere with an order unless the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to party against whom it was made.” This Court while dealing with the issue regarding leading of Civil Revision No.5150 of 2010 6 rebuttal evidence by the plaintiff where onus of an issue is on the defendant, in Civil Revision No. 4087 of 2006 ( Jai Narain Vs. Satya Narain and others) decided on August 27, 2007, opined as under:- “After hearing the learned counsel for the parties and considering the legal position as discussed above, I find merit in the contention raised by learned counsel for the petitioner. In the present case, it is not in dispute that the onus of the issues No.5 and 12 is on the defendants/respondents. If during the course of leading evidence on the issues, the onus whereof was on the plaintiff, any statement was made with regard to issues the onus of which is on the defendants, the same shall not mean that plaintiff had infact led or concluded his evidence on those issues as it is only after the defendant has led his evidence that plaintiff will come to know the same and get an opportunity to rebut the same. Plaintiff cannot presuppose the evidence which is to be led by the defendant on the issues, the onus whereof is on him. Even otherwise procedural law is subservient to the cause of justice.” In the aforesaid cases, principles underlying are enumerated as under:- “Firstly, the evidence which is in the form of vouchers showing refund of the loan amount given by the petitioner/plaintiff to the respondent/defendant were exhibited by the respondent/ defendant in his evidence and it was only thereafter the petitioner gets an opportunity to rebut those documents to prove his case and demolish the case set up by the respondent/defendant. Prior to that it was only that the petitioner was confronted with these documents during his cross-examination and as such these were merely put on record and marked. The same without having formally proved on record were not to be read in evidence and for that reason, the Civil Revision No.5150 of 2010 7 petitioner could not think to rebut the same at that stage. Secondly, the petitioner at that stage could not anticipate if the respondent/defendant would prove those documents in defence. Thirdly, these documents were not only proved in evidence in rebuttal to the evidence led by the plaintiff/petitioner on issue no.1 rather on issue no.3 as well where respondent/defendant had pleaded in the written statement that petitioner/plaintiff had not approached the Court with clean hands. Fourthly, once an issue, the onus of which, initially, was on the defendant, the plaintiff certainly has right to rebut the evidence led by the defendant on that issue.” In any way, the testimony of the expert, if taken on the record, would not bind the Court to form the opinion accordingly. The expert witness is like any other witness and at the same time, the science of signatures and hand writing is not a perfect science and the Court could decide about the genuineness of the documents while going through the evidence of the rival experts, as such the examination of this witness cannot cause prejudice to the petitioner. Resultantly, finding no merit in the present petition, the same is dismissed. (A.N.Jindal) Judge 15.02.2011 mamta-II