- (1.) BY way of this petition, petitioner has challenged the order dated 4.7.2013 (Annexure P -1), passed by the trial court, whereby plaintiff was permitted to examine handwriting expert in rebuttal evidence.
(2.) LEARNED counsel for the petitioner has submitted that plaintiffs -respondent could not be allowed to lead evidence in rebuttal qua the issue which was to be proved by the plaintiff in affirmative. In support of her arguments, learned counsel has placed reliance on the decision of this Court in Jagdev Singh and others vs. Darshan Singh and others, 2007 1 RCR(Civ) 794, wherein, it was held as under: - "6. In the present case, the question that is involved is whether the plaintiffs -respondents could examine the handwriting expert in the rebuttal evidence after having led their evidence in the affirmative on the issues the onus of which was on them. The plaintiffs in support of their case want to prove the memo of partition dated 12.5.1989 and the rapat roznamcha which was entered with the Halqa Patwari on 29.7.1994. The onus of proving the said documents was on them. Therefore, it is for them to prove the said documents in accordance with law. The scope and ambit of the right of the plaintiffs to lead evidence in rebuttal on issues, the onus of proof of which is on the plaintiffs was considered by a Division Bench of this Court in Surjit Singh and ors. vs. Jagtar Singh and ors., 2007 1 RCR(Civ) 537. After elaborate consideration of the entire matter, one of us (S.S. Nijjar, J) speaking for the Bench observed as follows : - "In our opinion, Order 18 Rule 3 of the Civil Procedure Code would not give a right to the plaintiff to lead evidence in rebuttal on issues in which the onus of proof is on the plaintiff. Accepting such an interpretation would be to ignore a vital part of Order 18 Rule 3 of the CPC. The rule clearly postulates that "the party beginning, may, at his option, either produce his evidence on these issues or reserve it by way of answer to the evidence produced by the other parties". No matter, how liberally a provision in the statute is required to be interpreted, by interpretation it cannot be amended. Whilst construing a statutory provision the Court cannot reconstruct it. The rule consciously provides the parties with an option either to produce the evidence in support of the issues or to reserve it by making a statement to that effect. The statement itself may well be liberally construed to avoid any unnecessary technical obstacles. One such example has been given by the Division Bench in the case of Smt. Jaswant Kaur, 1983 AIR(P&H) 210. It has been held that if a statement is made by the Advocate for the plaintiff that "the plaintiff closes its evidence in the affirmative only," the same would be read to mean that the plaintiff had reserved its right to lead evidence in rebuttal. We are, therefore, unable to agree with the observations made by the learned Single Judge in the case of Kashmir Kaur, 2000 2 RCR(Civ) 133 that he is entitled to lead evidence in rebuttal as a matter of right. In our opinion, this observation runs contrary to the observations of the Division Bench in Jaswant Kaur's case . The Division Bench has even fixed the maximum time on which the plaintiff has to exercise his option to reserve the right to lead evidence in rebuttal. It has been clearly held that such a reservation has to be made at the time of the close of the evidence of the plaintiff. We are also unable to agree with the observations of the learned Single Judge in the case of M/s Punjab Steel Corporation, 2002 130 PunLR 99 . In that case the plaintiff sought to lead evidence in rebuttal, after the close of the evidence of the defence. At that stage the plaintiff cannot be permitted to reserve the right to lead evidence in rebuttal. The observations of the learned Single Judge run contrary to the law laid down by the Division Bench in the case of Smt. Jaswant Kaur . No doubt, the Division Bench clearly lays down that an overly strict view cannot be taken about the modality of reserving the right of rebuttal. But at the same time, it has been held that the last stage for exercising option to reserve the right of rebuttal can well be before the other party begins its evidence. We are in respectful agreement with the aforesaid observations of the Division Bench in the case of Jaswant Kaur and R.N. Mittal, J. in National Fertilizers Ltd., 1982 AIR(P&H) 432." 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 11.3.1998 and reserved their right to produce evidence in rebuttal. However, the onus to prove the memo of partition dated 12.5.1989 and the rapat roznamcha which was got entered with the Halqa Patwari on 29.7.1994 was on them (plaintiffsrespondents). 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 29.7.1994. 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 crossexamination 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.) NONE has appeared on behalf of the respondent despite service. In the present case, plaintiff has filed the suit for recovery basing claim on pronote and receipt dated 10.12.2006. Trial Court framed the following issues: - "1. Whether the plaintiff is entitled to the recovery of Rs. 3,12,000/ - on the basis of pronote and receipt and interest thereon as agreed in terms of that and future interest @ 1% per month along with cost ? OPP 2.Whether the alleged pronote and receipt are forged and fabricated document, if so, its effect? OPD 3. Whether the present suit is not maintainable? OPD 4. Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD 5. Whether the plaintiff has concealed the material facts? OPD;