Civil Revision No.798 of 2009 - 1 - HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Civil Revision No.798 of 2009 DATE OF DECISION: 17.08.2009 **** Yashwant Rai . . . . Petitioner VS. Usha Rani & another . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** Present: Mr. M.K. Garg, Advocate for the petitioner Mr. B.S. Bhalla, Advocate for respondent No.1 None for respondent No.2 **** SURYA KANT J.(ORAL) This Revision Petition is directed by the plaintiff whose application to examine the handwriting expert in rebuttal, to prove the signatures of respondent-defendant No.2, as a marginal witness on the mortgage deed in dispute, has been dismissed, vide impugned order dated 19.01.2009 passed by Additional Civil Judge (Senior Division), Moga. The petitioner-plaintiff has filed a suit for possession by redemption of the mortgage, as according to the petitioner, the shop in dispute was mortgaged by him with possession in favour of the respondent-defendant No.1, who is alleged to have inducted respondent No.2 as a tenant. The respondents have refuted the petitioner’s claim. Civil Revision No.798 of 2009 - 2 - Respondent No.2 has come up with the plea that he is a direct tenant under the petitioner-plaintiff. On the basis of the pleadings, following issues have been framed by the trial Court:- 1. Whether the plaintiff is entitled to possession vide redemption of shop in dispute?OPP 2. Whether the present suit is not maintainable? OPD 3. Whether plaintiff has no locus standi to file the present suit? OPP 4. Whether the suit has been properly valued for the purposes of court fee and jurisdiction? OPD 5. Whether defendant No.2 is a tenant in the shop in dispute? OPD-2 6. Relief. It appears that the petitioner, in order to prove the mortgage of the property, has produced a mortgage deed to which respondent No.2 is stated to be a marginal witness. Respondent No.2 has, however, disputed his signatures when he stepped into the witness box. It is in order to prove those signatures, that the petitioner wanted to examine the handwriting expert. The only question that requires consideration is as to whether under Order 18 Rule 3 CPC, the petitioner, who has already led his evidence in affirmative, is entitled to produce the handwriting expert in rebuttal ? Civil Revision No.798 of 2009 - 3 - It is true that under Order 18 Rule 3 CPC, a party can reserve its right to lead evidence in rebuttal only in respect of an issue, the onus to prove which lies on the other party. As may be seen, the onus to prove issue No.5, namely, ‘whether respondent-defendant No.2 is a tenant in shop in dispute’, lies on respondent No.2 who has already led his evidence. The petitioner-plaintiff would be well within his right to lead evidence in rebuttal against Issue No.5 to prove that respondent-defendant No.2 was never inducted as a tenant by him, rather the possession of the shop was handed over to defendant No.1 while mortgaging the same. For the reasons afore-stated, the Revision Petition is allowed; the impugned order dated 19.01.2009 passed by the trial Court is set aside and the petitioner-plaintiff is permitted to produce the handwriting expert, as prayed for in his application. However, only one opportunity shall be granted to the petitioner in this regard, who shall produce the handwriting expert at his own responsibility, though through the Court process and subject to payment of cost of Rs.2000/- to the respondent. Parties are directed to appear before the trial Court on 08.09.2009. Dasti. (SURYA KANT) JUDGE 17.08.2009 shonkar