C.R. No.392 of 2010 (O & M) ::1:: IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH C.R. No.392 of 2010 (O & M) Date of decision: 16.11.2011 Kulwant Singh .... Petitioner Versus Mohan Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present: Mr.Malkeet Singh, Advocate, for the petitioner. Mr.Vikas Behl, Advocate, for the respondents. **** AJAY KUMAR MITTAL, J.: (Oral) The grievance of the plaintiff-petitioner in this revision petition filed under Article 227 of the Constitution of India is for setting aside order dated 11.01.2010 whereby the prayer of the petitioner for directing respondents No.1 and 4 to 6 to give their thumb-impressions for the purpose of comparison on the agreement to sell dated 23.05.2003 was declined by the trial Court. 2. Briefly the facts of the case may be noticed. The plaintiff- petitioner filed a suit for specific performance of an agreement to sell dated 23.05.2003 in respect of land measuring 8 Kanals 12½ Marlas situated in the revenue Estate of Noormahal, Tehsil Phillaur. The claim of the plaintiff was controverted by the defendants and it was C.R. No.392 of 2010 (O & M) ::2:: pleaded by them in the written statement that the agreement to sell was forged and fabricated document and it did not bear their thumb- impressions. 3. On the pleadings of the parties, the following issues were framed: "(i). Whether the plaintiff is entitled to specific performance of the agreement dated 23.05.2003 executed by the defendants No.1 to 6 in favour of the plaintiff ? OPP (ii). Whether the plaintiff is entitled to injunction as prayed for ? OPP. (iii). Whether the plaintiff is ready and willing to perform his part of the contract ? OPP (iv). Whether the suit is within limitation ? OPP (v) Whether the plaintiff has no locus standi to file the present suit ? OPD (vi) Whether the suit is not maintainable in the present form ? OPD (vii) Whether the suit is bad for non-joinder and misjoinder of necessary parties ? OPD (viii) Whether the plaintiff has not come to the court with clean hands ? OPD (ix) Whether the plaintiff is barred by his own act and conduct from filing the present suit ? OPD (x) Relief. 4. The plaintiff-petitioner closed his evidence on 25.04.2007. Thereafter, the defendants had also led their evidence which was C.R. No.392 of 2010 (O & M) ::3:: closed on 05.02.2009. At that stage, an application was filed by the plaintiff-petitioner for comparison of the thumb-impressions of the respondents No.1 and 4 to 6 with the thumb-impression on the agreement to sell dated 23.05.2003 which has been rejected by the trial court. 5. Learned counsel for the petitioner submitted that it was essential for the just decision of the case that the comparison of thumb-impressions of respondents No.1 and 4 to 6 was done in order to prove the execution of the agreement to sell dated 23.05.2003. On the strength of the judgment of this Court in Kewal Singh versus Jagjit Singh 2008 (1) PLR 173 , it was submitted that mere negligence on the part of the counsel would not foreclose the right of the plaintiff from filing the application as has been done by the trial court. 6. Rebutting the arguments of the learned counsel for the petitioner, it was submitted that the present application was nothing but an abuse of process of the Court and the procedure under the Code. There was no issue the onus of which was on the defendants whereby the plaintiff-petitioner could seek the permission to lead the rebuttal evidence. Further the suit was filed in the year, 2004 and the present application was filed only after the defendant-respondents had closed their evidence. 7. After giving thoughtful consideration to the respective submissions, I do not find any merit in the submission made by learned counsel for the petitioner. The evidence had been concluded by the plaintiff and the defendants by leading their evidence in the affirmative. The learned counsel for the plaintiff-petitioner could not C.R. No.392 of 2010 (O & M) ::4:: justify moving of the present application at this stage for comparison of thumb-imopressions of defendant No.1, 4 to 6 on the agreement to sell dated 23.05.2003 when it was for the plaintiff-petitioner to prove valid agreement to sell dated 23.05.2003 by leading affirmative evidence. The trial court while declining the application had observed as under : "9. The plaintiff has filed the suit for specific performance of agreement to sell dated 23.05.2003 claiming that defendant No.1 himself and as attorney of defendants No.2 & 3 and also by defendants No.4 to 6 executed the agreement in question in favour of plaintiff. Thereafter, notice of the suit was given to the defendants, who appeared and denied the execution of the agreement by filing written statement and issues were framed on 3.1.2005 and case remained fixed for several dates for the evidence of plaintiff and thereafter, case was fixed for the evidence of defendants and defendants have closed their evidence on 5.2.2009 and thereafter, case was fixed for rebuttal evidence and for arguments. It is the plaintiff, who set up the agreement dated 23.05.2003 and his claim is based on the agreement dated 23.05.2003 and plaintiff is seeking specific performance of agreement, then certainly it is incumbent upon the plaintiff to prove this fact by leading evidence in affirmative. When the plaintiff has already led its evidence and defendants have already closed their evidence, in these circumstances, at this stage by filing the present application for calling upon defendants No.1, 4 to 6 to give specimen thumb impressions, means that plaintiff has again started proving the C.R. No.392 of 2010 (O & M) ::5:: agreement in question in rebuttal evidence, which plaintiff has no right to do so. Present application seems to be filed just to fill up the lacunas and plaintiff cannot lead evidence qua the execution of the agreement in question in rebuttal, as question to prove the issue regarding the execution of the agreement in question is already on plaintiff and plaintiff has to lead its evidence in affirmative and that has been done by the plaintiff and has already closed its evidence. In these circumstances, the present application is devoid of any merits and the same is hereby dismissed." 8. Referring to the judgment relied upon by the learned counsel for the petitioner in Kewal Singh's case (supra), suffice it to notice that the said judgment was on individual fact/situation involved therein and the same has no applicability in the present case. No illegality or perversity could be demonstrated in the aforesaid findings of the trial court which may warrant interference by this Court under Article 227 of the Constitution of India. 9. The present revision petition is accordingly dismissed. (AJAY KUMAR MITTAL) JUDGE November 16, 2011 sukhpreet