IMPORTANT POINT
Rebuttal Evidence--O.18, R.3 would not give a right to plaintiff to lead evidence in rebuttal on issues, of which the onus of proof was on him.
Expert evidence--Application of plaintiff/respondent for examining Handwriting and finger prints expert for proving the execution of agreement to sell, when the case was fixed for rebuttal--Cannot be allowed.

Sham Sunder, J.

1. This revision-petition is directed against the order dated 20.09.2007, rendered by the Court of Civil Judge (Junior Division), Ludhiana. vide which it allowed the application of the plaintiff (now respondent), for examining Handwriting & Fingerprints Expert, for proving the execution of the agreement to sell, when the case was fixed for rebuttal evidence.

2. A suit for specific performance of the agreement to sell dated 11.08.1993 was filed by the plaintiffs (now respondents). The plaintiffs led their evidence to prove the execution, validity and legality of the agreement to sell, and closed the same, in affirmative. The defendant (now revision- petitioner) also closed his evidence. When the case was fixed for rebuttal evidence and arguments, an application for examining the Handwriting and Fingerprints Expert, was filed by the plaintiffs, which was allowed by the trial Court, vide the order impugned.

3. Feeling aggrieved, the instant revision petition, was filed by the revision petitioner/defendant.

4. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully.

5. The Counsel for the revision petitioner, submitted that in the written statement, filed by him, he denied the execution, validity and legality of the agreement to sell. He further submitted that the onus to prove the execution, validity, and legality of the agreement to sell, was on the plaintiffs and they were required to produce the evidence, to prove the same, in affirmative. He further submitted that the evidence, which was required to be produced in affirmative, could not be allowed to be produce in rebuttal. He further submitted that the plaintiffs could produce the evidence in rebuttal, in respect of the issues of which the onus lay upon the defendant. He also placed reliance on Dinesh Kumar v. State of Haryana & Ors., 2002(4) RCR(Civil) 366 -- 2003(1) CCC 445, Surjit Singh and others v. Jagtar Singh and others, 2007(1) RCR(Civil) 537- (2007-1) The Punjab Law Reporter 552 (DB) and M/s. Thind Traders v. Jaswant Kaur and others, C.R. No. 1500 of 2004, decided on 21.03.2006 by this Court in support of his contention. He further submitted that, in this view of the matter, the order impugned, being legal, was liable to be set aside.

6. On the other hand, the Counsel for the respondents submitted that no doubt, the onus to prove the execution, legality and validity of the agreement to sell was on the plaintiffs. He further submitted that he led evidence in affirmative. He further submitted that since the defendants. examined a Handwriting & Fingerprints Expert, in their evidence, the plaintiffs were entitled to rebut the same, by examining the Handwriting & Fingerprints Expert, in rebuttal. He further submitted that the order impugned, being legal and valid, was liable to be upheld.

7. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the revision petition is liable to be accepted, for the reasons to be recorded hereinafter. The onus to prove the execution, legality and validity of the agreement to sell, was on the plaintiffs. They were required to lead evidence to prove this factum in affirmative. If they failed to lead evidence by way of examining a Handwriting & Fingerprints Expert, in affirmative, to prove the execution of the agreement to sell they could not be allowed to lead the same. in rebuttal. They could lead evidence in rebuttal only, in respect of those issues, of which, the onus lay upon the defendant. In Surjit Singh and others-s case (supra) a case decided by a Division Bench of this Court, the principle of law, laid down, was to the effect that Order 18 Rule 3 would not give a right to the plaintiffs, to lead evidence in rebuttal on issues in which the onus of proof was on them. It was further held that accepting such an interpretation, would be to ignore a vital part of Order 18 Rule 3 CPC.