- (1.) This petition is directed against the order dated 23.1.2014 by which application filed by the plaintiff under Order 14 Rule 5 of the Code of Civil Procedure, 1908 [for short 'the CPC'] for framing of additional issue and for examining the handwriting expert in rebuttal was dismissed and the application filed by defendant No.1 for not allowing the plaintiff to examine the handwriting expert in rebuttal was allowed.
(2.) The brief facts of the case are that defendant No.1 entered into an agreement to sell the property in dispute to the plaintiff on 29.10.2004 for a sale consideration of Rs. 4,55,000/- per acre in lieu of which the plaintiff paid in advance a sum of Rs. 2 lacs to defendant No.1. The date for execution of sale deed was fixed as 15.6.2005 but before the said date, the plaintiff apprehending that defendant No.1 may not alienate the suit property before the target date, filed the suit on 22.4.2005. Defendant No.1 brought to the notice of the plaintiff that he had already entered into an agreement with Harbhagat Singh-defendant No.2 on 14.10.2004 and the present agreement is a forged document. After the target date was over, plaintiff filed the suit for specific performance of the agreement to sell after impleading both the prospective vendees i.e. Harbhagat Singh and Chamkaur Singh as defendants. In this suit, defendant No.1 has again taken a plea that there was no agreement with the plaintiff dated 29.10.2004 rather he had entered into agreement with defendants No.2 and 3 on 14.10.2004 and the agreement on the strength of which the suit has been filed by the plaintiff is a forged document. On the pleadings of the parties, as many as 12 issues were framed by the trial Court on 24.2.2006, which are reproduced as under: - "1. Whether the defendant No.1 entered into an agreement dated 29.10.2004 with the plaintiff to alienate the property in dispute @ Rs. 4,55,000/- per acre, by receiving as an earnest amount from the plaintiff? OPP 2. Whether the plaintiff was ready and willing and is still ready and willing to perform his part to the said agreement dated 29.10.2004. OPP 3. Whether the plaintiff is entitled for specific performance of the agreement to sell dated 29.10.2004 as prayed for? OPP 4. Whether the plaintiff is entitled for possession of the property in dispute. OPP 5. Whether the plaintiff is entitled for permanent injunction, as prayed for? OPP 6. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 7. Whether the plaintiff is estopped by his own work and conduct from filing the present suit. OPD 8. Whether the suit of the plaintiff is bad for non-joinder of necessary parties and misjoinder of parties. 9. Whether the suit of the plaintiff is barred by rule? OPD 10. Whether the suit of the plaintiff is barred u/o 2 Rule 1 CPC? OPD 11. Whether the contesting defendants No.1 and 2 are entitled for compensatory costs U/s 352A of OPC? OPD 12. Relief.
(3.) Both the parties led their respective evidence. Thereafter, the plaintiff filed an application under Order 14 Rule 5 of the CPC for framing of an additional issue to the effect that "whether defendant No.1 executed the agreement to sell on 14.10.2004 qua the land measuring 19 kanals 17 Marlas out of the suit land, if favour of defendant No.2 Harbhagat Singh, if so, its effect? OPD. Since, defendant No.1 had already led the evidence by producing Harbhagat Singh as his witness, who has alleged that there was an agreement with him by defendant No.1 and wanted to wriggle out of the agreement with the plaintiff on the ground that it is a bogus document, the plaintiff tendered the report of the handwriting expert and his affidavit in examination-in-chief as PW6/A and at that stage, the defendants filed the application that the evidence sought to be produced by the plaintiff by way of examination of handwriting expert should not be allowed.;