Civil Revision No. 606 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 606 of 2011 Date of Decision: 12.5.2011 *** Hasan .. Petitioner Vs. Sardar & Ors. .. Respondents CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR Present:- Mr. Sanjay Vij, Advocate for the petitioner. Mr. B.r. Vohra, Advocate for respondents No.2 to 4. Mr. G.S. Anand, Advocate for respondent No.5. Respondent No.1 already died. *** ARVIND KUMAR, J. The present petitioner is the plaintiff in the suit for specific performance of agreement dated 4.7.2006 executed allegedly in his favour by one Kanwar Chand (since deceased) being the attorney holder of defendants No.1 and 2, which status was conferred upon him by dint of registered GPA dated 27.2.1976. The execution of GPA as well as agreement has been disputed by the defendants. The plaintiff lead his evidence in affirmative and closed the same. The defendants, in their evidence got examined one handwriting and fingerprint expert, according to which the thumb impressions of Kanwar Chand on GPA do not tally with the impressions appearing on agreement. Claiming that the said report is factually and actually incorrect, the plaintiff filed an application and thereby sought permission to send the agreement and GPA in dispute to the FSL, Madhuban for compariso of Civil Revision No. 606 of 2011 2 thumb impression of Kanwar Chand and signatures of witness namely Ganga, so as to ascertain the true facts. The said prayer was opposed by the defendants and the learned trial Court by dint of order dated 11.12.2010 dismissed the same by observing that the onus to prove the execution of agreement to sell in question was upon the plaintiff and in his affirmative evidence he do not bother to get an expert examined, therefore, he cannot be permitted to lead affirmative evidence at the stage of rebuttal. Dis-satisfied with the same instant revision petition has been filed by the petitioner-plaintiff. I have heard learned counsel for the parties and have gone through the paper book carefully. The sole ground taken by the learned trial Court in rejecting the prayer of the petitioner is that, despite having the onus to prove the execution of agreement and GPA, the plaintiff failed to examine the hand- writing expert and now the evidence, which is required to be produced in affirmative, cannot be permitted to be produced in rebuttal. It is well settled that the civil matters are decided on preponderance of evidence and the onus of an issue, be it initially placed on one party or the other, keeps on shifting during the currency of the trial. Though the petitioner obviously had produced evidence in affirmative to prove the due execution of the aforesaid documents, but it is only when the defendants produced an expert who gave report against the plaintiff, it necessitated the plaintiff to get the aforesaid documents examined from a Government agency i.e. Forensic Science Laboratory, Madhuban. Whatever the report comes after the examination, the defendants certainly have a right to cross-examine the author of the report, to their advantage and thus, no prejudice is going to be caused to them if the aforesaid documents are being sent to the laboratory. Only on the basis of technicalities the application of the petitioner ought not to have been dismissed. After all rules and procedure are handmaid of justice. These are meant to enhance the cause of justice and not to scuttle the same. Accordingly, this revision petition is allowed and order, under challenge, is set aside. The trial court is directed to sent the aforesaid documents to the FSL, Madhuban for examination at the costs of the Civil Revision No. 606 of 2011 3 petitioner. Needless to mention here that the report only be not made part of the record, but the Court will summon the Expert, so that he be put to cross- examined with regard to the report submitted by him. The order passed is subject to payment of costs of Rs.25000/- paid by the petitioner to the defendants in equal share. In case the cost is not paid on the next date of hearing fixed before the learned trial Court, the instant petition shall be deemed to have been dismissed. (ARVIND KUMAR) JUDGE May 12, 2011 Jiten