L.N. Mittal, J.@mdashThis revision petition under Article 227 of the Constitution of India has been instituted by defendant no. 1-Buta Singh
assailing order dated 31.5.2012 Annexure P/8 passed by the trial court thereby dismissing applications Annexures P/4 and P/6 filed by the
petitioner for additional evidence. Suit was filed by respondent no. 1-plaintiff Balwant Kaur (since deceased and represented by her son and legal
representative Sukhi Jagdeep Singh) against petitioner and respondents no. 2 and 3 as defendants. Original plaintiff was sister of defendant no. 1 -
petitioner. The dispute relates to inheritance of their father Uttam Singh. Defendant no. 1 has set up registered Will allegedly executed by Uttam
Singh in favour of petitioner-defendant no. 1.
2. In application Annexure P/4, defendant no. 1 alleged that he wants to examine Document Expert to prove signatures of testator Uttam Singh
and attesting witness Pardhan Singh (both since deceased) on the disputed Will. It was pleaded that earlier defendant no. 1 was not having
knowledge of any standard signatures of Uttam Singh and Pardhan Singh, but now he has been able to trace the same, necessitating the
examination of Document Expert.
3. Plaintiff by filing reply Annexure P/5 opposed the application and also pleaded that defendant no. 1 has not disclosed the documents allegedly
bearing standard signatures of Uttam Singh and Pardhan Singh. Thereupon, defendant no. 1 filed supplementary application Annexure P/6
mentioning two documents one having signatures of Uttam Singh and the other having signatures of Pardhan Singh. Plaintiff by filing reply Annexure
P/7 opposed the said application also.
4. Learned trial court vide impugned order Annexure P/8 has dismissed both the applications filed by defendant no. 1 who has, therefore, filed this
revision petition to challenge the said order.
5. I have heard counsel for the parties and perused the case file.
6. Counsel for defendant no. 1-petitioner reiterated the averments made in the applications Annexure P/4 and P/6 and also submitted that
defendant no. 1 has been able to lay hands on some more documents also bearing signatures of Uttam Singh and Pardhan Singh for comparison by
Document Expert.
7. On the other hand, counsel for respondent no. 1-plaintiff contended that there is no ground for permitting the petitioner to lead proposed
additional evidence because he was granted sufficient number of opportunities to lead his evidence.
8. I have carefully considered the matter. Trial court has dismissed the applications of defendant no. 1 merely on the ground of delay observing that
he was granted at least 17 opportunities to conclude his evidence on 5.5.2011 after the plaintiff had closed her evidence on 16.8.2010. However,
application for additional evidence could not be dismissed merely on this ground. On the contrary, necessity for seeking permission to lead
additional evidence arises only when the party fails to lead such evidence at appropriate stage. Moreover, observation of the trial court that
defendant no. 1 availed 17 opportunities till closing his evidence on 5.5.2011 after the plaintiff closed her evidence on 16.8.2010 also does not
appear to be factually correct. In fact, defendant no. 1 had closed his evidence on 3.11.2008 vide his statement Annexure P/3. Counsel for
defendant no. 1 - petitioner has pointed out that since onus to prove the Will set up by defendant no. 1 was on him, he was asked to lead the
evidence first and it was thereafter that the plaintiff led her evidence. It appears that after defendant no. 1 closed his affirmative evidence on
3.11.2008 vide statement Annexure P/3, the plaintiff closed her evidence on 16.8.2010. Zimini orders of the trial court shown by counsel for
respondent no. 1 reveal that after plaintiff closed her evidence on 16.8.2010, the case was adjourned for evidence of defendants no. 2 and 3 and
their evidence was closed on 5.5.2011. Consequently, observation of trial court regarding 17 opportunities granted after 16.8.2010 till 5.5.2011
pertains to opportunities granted to defendants no. 2 and 3 and not to defendant no. 1.
9. Be that as it may, defendant no. 1 has specifically pleaded that he could not examine the Document Expert while he was leading his evidence
because he was not having standard signatures of Uttam Singh testator and Pardhan Singh attesting witness. Now defendant no. 1 has been able to
lay hands on some documents bearing signatures of Uttam Singh and Pardhan Singh. In view thereof, defendant no. 1-petitioner should have been
allowed to lead proposed additional evidence on payment of costs. Respondents will get an opportunity to lead evidence in rebuttal of the
additional evidence of the petitioner. In these circumstances, respondent no. 1-plaintiff can be compensated by way of costs. Resultantly, I find that
impugned order passed by the trial court suffers from illegality and jurisdictional error. The instant revision petition is, therefore, allowed. Impugned
order Annexure P/8 passed by the trial court is set aside. Applications Annexure P/4 and P/6 filed by defendant no. 1-petitioner for additional
evidence are allowed and defendant no. 1-petitioner is permitted to lead proposed additional evidence including more documents traced by the
petitioner allegedly bearing signatures of Uttam Singh testator and Pardhan Singh attesting witness subject to payment of Rs. 7500/- as costs
precedent to respondent no. 1-plaintiff.
