CR No.1270 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1270 of 2007 Date of Decision: 30.10.2008 Ram Rattan ....Petitioner Vs. Anand Pandit & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Naveen Sharma, Advocate, for the petitioner. Mr.Sudeep Mahajan, Advocate, for respondent Nos.1 & 2. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) The petitioner has invoked the revisional jurisdiction of this court to challenge the order dated 6.1.2007 passed by the learned Civil Judge (Junior Division), Jalandhar dismissing an application moved by the CR No.1270 of 2007 2 petitioner for recall of order dated 18.4.2006 vide which plaintiff- respondents were permitted to examine Handwriting Expert in rebuttal. The petitioner claimed that the evidence of the petitioner- defendant was closed on 7.2.2006 and thereafter the case was adjourned to 29.3.2006 for rebuttal and arguments. It is the case of the petitioner that issues framed in the suit did not leave any scope for examining Handwriting Expert in rebuttal. It was claimed that the application moved for examining Handwriting Expert in rebuttal was not supplied nor reply was sought from the counsel for the petitioner and the same was allowed without giving opportunity of hearing. The petitioner came to know about the order dated 8.9.2006 when the expert appeared. It was claimed that the plaintiffs had no right to examine Handwriting Expert in rebuttal as there was no such issue. On notice reply was filed where a stand was taken that the counsel for the petitioner was present in court on 18.4.2006 when the application was moved and copy thereof was supplied to him. The application was allowed after hearing him. It was denied that the petitioner came to know about the order on 8.9.2006 as claimed. It was further the case of the respondent-plaintiffs that when Expert appeared the case was adjourned to 5.5.2006.On the said date, counsel for the defendant was present and PW 4 was examined and photographs were taken by expert. Thus, the averments made in the application were denied. The learned trial court observed that in the present suit for possession by way of specific performance. Issues were framed on 1.8.2003 which read as under:- CR No.1270 of 2007 3 1. Whether the plaintiffs are entitled for the specific performance as prayed for?OPP 2. Whether the suit of the plaintiff is not maintainable in the present form? OPD 3. Whether the plaintiffs have not come to the court with clean hands? OPD 4. Whether the plaintiffs are estopped by their act and conduct from filing the present suit? OPD 5. Relief. It was further observed by the learned trial court that the plaintiffs led evidence and concluded the same and thereafter the defendant-petitioner led evidence and examined Handwriting Expert and closed his evidence. The court observed that objection of the defendant/ petitioner was that Handwriting Expert could not be examined in rebuttal as it was only possible to examine the said Expert in affirmative. The court did not go into the merits of the claim but dismissed the application by placing reliance on the judgment of this court in the case of Kashmir Kaur Vs. Bachan Kaur & Anr. 2000 (1) PLR 606. Learned counsel appearing on behalf of the petitioner has challenged the impugned order by placing reliance on the judgment of this court in the case of Surjit Singh & Ors. Vs. Jagtar Singh & Ors AIR 2007 Punjab & Haryana 1 to contend that the judgment in the case of Kashmir Kaur Vs. Bachan Kaur (supra) on which reliance was placed by the learned trial court stood overruled by the Division Bench of this court. Thus, it was contended that the impugned order cannot be sustained. CR No.1270 of 2007 4 Mr.Sudeep Mahajan, learned counsel appearing on behalf of the respondents controverted the allegations on the plea that the judgment of this court in the case of Kashmir Kaur Vs. Bachan Kaur & Anr. (supra) was not overruled by this court in the case of Surjit Singh & Ors. Vs. Jagtar Singh & Ors (supra). However, this plea cannot be accepted as the Division Bench of this Court specifically held that they were unable to agree with the observations made by the learned Single Judge in the case of Kashmir Kaur Vs. Bachan Kaur & Anr. (supra) that a party is entitled to lead evidence in rebuttal as a matter or right. It was specifically held that the said observations are contrary to the judgment of Division Bench of this case in the case of Smt.Jaswant Kaur and another Vs. Devinder Singh and others AIR 1983 Punjab and Haryana 210. The impugned order has been passed merely by placing reliance on the observations made by this court in the case of Kashmir Kaur Vs. Bachan Kaur & Anr. (supra). Thus, the contention of the learned counsel for the petitioner has force and deserves to be accepted. Faced with this situation, learned counsel for the respondents contended that in fact the evidence in rebuttal was required to controvert the evidence led by the defendants on issue No.3. However, this contention also cannot be accepted. Evidence to prove the agreement was required to be led on issue No.1 and not on Issue No.3 and therefore, the evidence sought to be led by the respondent/plaintiffs was in fact on issue No.1, the onus of which was on the plaintiff/respondents and therefore, the respondent/plaintiffs could not have been permitted to lead evidence by CR No.1270 of 2007 5 examining the Expert in rebuttal to prove the agreement of sale. For the reasons stated above, the impugned order cannot be sustained. This revision is accordingly accepted. The impugned order is set aside and the application moved by the petitioner for recalling the order stands allowed with no order as to costs. 30.10.2008 (Vinod K.Sharma) rp Judge