L.N. Mittal, J.@mdashPlaintiff no. 1 Baljit Singh has filed this revision petition under Article 227 of the Constitution of India impugning order dated 11.02.2013 passed by the trial court, thereby dismissing application (Annexure P-1) filed by plaintiff no. 1 for permission to examine handwriting expert in rebuttal evidence. Plaintiffs have filed suit for declaration and permanent injunction alleging that they are absolute owners of the respective shares in the suit property. Defendant no. 1, in his evidence, examined handwriting expert to prove alleged signatures of plaintiff no. 1-petitioner on alleged affidavit Mark-DA. Plaintiff no. 1 has alleged that the said affidavit is false, forged and fabricated document and does not bear his signatures. Petitioner, by moving application (Annexure P-1), sought permission to examine handwriting expert to rebut the evidence of handwriting expert examined by defendant no. 1.
2. Contesting defendant no. 1 opposed the application by filing reply and denied the averments made in the application. Learned trial court, vide impugned order dated 11.02.2013, has dismissed the application (Annexure P-1) filed by the petitioner, who has, therefore, filed this revision petition to assail the said order.
3. I have heard counsel for the parties and perused the case file.
4. Counsel for the petitioner contended that application (Annexure P-1) was necessitated because defendant no. 1 examined the handwriting expert in his evidence to prove alleged affidavit Mark-DA, which was not referred to in the written statement, and therefore, plaintiff should be granted permission to examine handwriting expert in rebuttal evidence.
5. Counsel for respondents no. 2 to 4 has not opposed the revision petition. However, counsel for respondent no. 1 contended that plaintiffs have no right to examine handwriting expert in rebuttal evidence. Reliance in support of this contention has been placed on a Division Bench judgment of this Court in the case of
6. I have carefully considered the matter.
7. Counsel for respondent no. 1 fairly conceded that affidavit in question has not been referred to in the pleadings by the defendants. In this view of the matter, strictly speaking, the aforesaid affidavit cannot be produced in evidence being beyond pleadings. Consequently, if the said affidavit is excluded from evidence, there would be no necessity for the plaintiff to examine the handwriting expert in rebuttal evidence. It is correct that plaintiffs ordinarily would have no right to lead evidence in rebuttal on an issue, onus whereof is on the plaintiffs themselves. In the instant case, however, defendant no. 1 has introduced the alleged affidavit at the stage of evidence, without mentioning the same in the pleadings. Consequently, at the stage of affirmative evidence, the plaintiffs could not have thought of examining the handwriting expert regarding alleged signatures of plaintiff no. 1-petitioner on the said affidavit because the said affidavit is completely beyond pleadings. In these peculiar circumstances, the plaintiffs have right to examine the handwriting expert even in rebuttal evidence because defendant no. 1 has introduced the aforesaid affidavit beyond pleadings, at the stage of evidence.
8. For the reasons aforesaid, I find that the impugned order passed by the trial court is erroneous and suffers from illegality and jurisdictional error.
9. Resultantly, the instant revision petition is allowed. Impugned order passed by the trial court is set aside. Application (Annexure P-1) filed by plaintiff no. 1-petitioner is allowed and plaintiffs are permitted to examine the handwriting expert in rebuttal evidence. Pending Civil Miscellaneous applications, if any, are disposed of as infructuous.
