Avtar Singh & Ors. v. Jagdev Singh & Ors.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sham Lal Bhalla, Advocate for the petitioners. * * * L. N. MITTAL, J. (Oral) : This is revision petition by defendants no.1 to 4, assailing order dated 22.02.2010 (Annexure P-4) passed by learned Additional Civil Judge (Senior Division), Fatehgarh Sahib, thereby allowing plaintiff-respondent no.1 to lead additional evidence. Respondent no.1 Jagdev Singh filed suit alleging inter alia that Will dated 01.01.1993 said to have been executed by Joginder Singh is a forged document and Joginder Singh never executed the said Will in favour of defendants no.1 to 4/petitioners. Defendants no.1 to 4 pleaded that Joginder Singh executed the said Will in their favour. Issue no.2, as under, has been framed by the trial court :- “2. Whether Un-registered Will dated 1.1.1993 is illegal, null and void ? OPP” C. R. No. 2373 of 2010 2 The parties led their evidence.

At the stage of rebuttal evidence and arguments, plaintiff moved application Annexure P-2 for additional evidence to examine handwriting expert to prove that the alleged Will has not been signed by Joginder Singh. The said application has been allowed by the trial court by the impugned order. I have heard learned counsel for the petitioners and perused the case file. Learned counsel for the petitioners contended that onus of issue no.2 is on the plaintiff and therefore, the plaintiff cannot be allowed to examine handwriting expert as witness in rebuttal evidence. Reliance in support of this contention has been placed on a judgment of this Court in the case of Jagdev Singh and others vs. Darshan Singh and others reported as 2007 (1) R. C. R. (Civil) 794. The contention is completely misconceived and devoid of merit. The plaintiff is not leading the proposed evidence as rebuttal evidence, but has been allowed to lead the same as additional evidence.

Consequently, the aforesaid contention has no weight. As noticed herein above, defendants no.1 to 4 have pleaded that Joginder Singh executed the Will. Consequently, issue should have been framed as to whether Joginder Singh executed Will dated 01.01.1993 and onus of the said issue should have been placed on defendants no.1 to 4, who have pleaded execution of the said Will by Joginder Singh. However, issue no.2, as reproduced herein above, has not been properly framed and onus has been placed on the plaintiff. In view of this situation, the plaintiff was forced to seek permission to lead additional evidence to rebut the evidence led by defendants no.1 to 4 to prove execution of the Will by Joginder Singh. If issue no.2 had been properly framed with onus on defendants no.1 to 4, the plaintiff would have been entitled to lead evidence thereon in rebuttal evidence as a matter of right. In these circumstances, granting permission to plaintiff to lead proposed additional evidence is fully justified because plaintiff earlier had no opportunity to lead the proposed C. R. No.

2373 of 2010 3 evidence. It was initially for defendants no.1 to 4, who have propounded the Will, to prove its due execution and only thereafter, the plaintiff could lead evidence to the contrary. For the reasons recorded herein above, I find that there is no illegality or perversity in the impugned order of the trial court, so as to warrant interference at the hands of this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is without any merit and is accordingly dismissed in limine. April 08, 2010 monika ( L. N. MITTAL ) JUDGE