Sabina, J. - (1.) PLAINTIFF has filed a suit for possession on the basis of title and as a consequential relief suit for declaration that the sale deeds dated 20.5.1987, 3.6.1987, 25.8.1987 and 16.12.1987 were illegal, null and void. Mutations, sanctioned on the basis of the said sale deeds, were also challenged by the Plaintiff. Parties led their evidence in the affirmative. Now the case is listed for rebuttal evidence of the Plaintiff, if any and arguments. In the rebuttal evidence, Plaintiff has examined hand writing expert, in chief on 3.3.2011 and the cross examination of the expert has been deferred.
(2.) LEARNED Counsel for the Petitioners has submitted that an expert could not be examined by way of rebuttal evidence as there was no such an issue which entitled the Plaintiff to examine the hand writing expert in rebuttal evidence. In support of his arguments, learned Counsel for the Petitioner has placed reliance on Jagdev Singh and Ors. v. Darshan Singh and Ors., 2007(2) CCC 261, wherein it was held as under: In terms of the aforesaid dictum, it is evident that the Plaintiffs -Respondents cannot as a matter of right lead evidence in rebuttal on issues, the onus of proof of which is on them. The Plaintiffs -Respondents had concluded their evidence in the affirmative on 11.03.1998 and reserved their right to produce evidence in rebuttal. However, the onus to prove the memo of partition dated 12.05.1989 and the rapat roznamcha which was got entered with the Halqa Patwari on 29.07.1994 was on them (Plaintiffs -Respondents). Therefore, they could not examine the handwriting expert as a matter of right. Therefore, it is to be seen in the facts and circumstances of each case whether the Plaintiffs can examine a handwriting expert in rebuttal. The ground for examination of the handwriting expert is that the Defendant -Jagdev Singh while appearing in the witness box did not give clear answer as regards his signatures on the memo of partition dated 12.5.1989 and the rapat roznamcha which was got entered with the Halqa Patwari on 29.07.1994. In this regard, it is appropriate to note that it is for the Plaintiffs to prove their case in accordance with law on the basis of evidence. The fact that Jagdev Singh in his cross -examination did not make clear the point as to whether the said documents bear his signatures would not per se entitle the Plaintiffs to examine a handwriting expert in rebuttal although for not giving answers to the questions posed during cross -examination may entail the drawing of an adverse inference for the purposes of appreciation of evidence. However, it would not give a right to the Plaintiffs to make clear the point by producing a handwriting expert at that stage. In the circumstances, the learned trial Court while passing the impugned order has violated the procedure provided for leading evidence which has resulted in causing prejudice to the Petitioners and would vitiate the impugned order.
(3.) LEARNED Counsel for the Petitioner has next placed reliance on Jai Narain v. Satya Narain and Ors., 2008 (2) CCC 274 wherein it was held as under: After hearing the learned Counsel for the parties and considering the legal position as discussed above, I find merit in the contention raised by learned Counsel for the Petitioner. In the present case, it is not in dispute that the onus of the issues No. 5 and 12 is on the Defendants/Respondents. If during the course of leading evidence on the issues, the onus whereof was on the Plaintiff, any statement was made with regard to issues the onus of which is on the Defendants, the same shall not mean that Plaintiff had infact led or concluded his evidence on those issues as it is only after the Defendant has led his evidence that Plaintiff will come to know the same and get an opportunity to rebut the same. Plaintiff cannot presuppose the evidence which is to be led by the Defendant on the issues, the onus whereof is on him. Even otherwise procedural law is subservient to the cause of justice.;