The provisions of Order 18 Rule 17 of the Code of Civil Procedure do not permit a party to re-examine any witness to fill up the lacuna in his case.

Viney Mittal, J.

1. At the out set, Shri R.C. Setia, the learned senior counsel appearing for the petitioners has submitted that in view of the law laid down in Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and Ors., J.T. 2003(4) S.C. 255. the present revision petition filed under Section 115 of the Code of Civil Procedure (hereinafter referred to as the "Code") is not maintainable. Shri R.C. Setia, the learned senior counsel has submitted that the present revision petition be treated as a petition under Article 227 of the Constitution of India.

2. Keeping in view the facts and circumstances of the case and also the request made by the learned counsel, the present petition is treated to be a petition under Article 227 of the Constitution of India.

3. The plaintiff are the petitioners. They have impugned the order dated January 19, 1995 passed by the learned Sub Judge II Class, Jagraon whereby the application under Order 18 Rule 17 of the Code filed by the defendant-respondents has been allowed. While allowing the aforesaid application, Handwriting and Finger Prints Expert-Dr. Atul K. Singla had been ordered to be re-summoned and re-examined with respect to an additional report.

4. A suit for possession of the land and the house in dispute was filed by the plaintiff-petitioners. The said suit is being contested by the defendant-respondents. The defendants have set up a will dated August 16, 1966 stated to have been executed by one Bakhtawar Singh. The execution and validity of the aforesaid will was contested by the plaintiffs. Accordingly, the defendants examined Dr. Atul K. Singla Handwriting and Finger Print Expert, Patiala to compare the thumb impressions of the executant of the said will with the standard thumb impressions of the executant on a mortgage deed dated March 25, 1960 and the receipt dated June 2. 1966. The expert submitted a report dated November 7, 1993. In the report it was opined by him that the disputed thumb impressions marked as Q1 and Q2 had been affixed by the same person whose thumb impressions were marked as S1 and S2.

5. Subsequently the defendants filed an application under Order 18 Rule 17 of the Code. It was prayed that the aforesaid expert be recalled to prove his additional report with regard to another thumb impression existing on the mortgage deed. This prayer of the defendants was contested by the plaintiff-petitioners.

6. The learned trial Court vide order dated January 19, 1995 held that since the handwriting expert had himself opined that the questioned thumb impressions had not been compared with the thumb impressions at S3 and S4 on the mortgage deed dated June 25, 1960 because these were not fit for comparison and farther that the defendants had come to know that the thumb impressions marked as S2 bears the name of Kishan Singh, therefore, they had got the other thumb impressions namely, S3 and S4 compared with the questioned thumb impression. The additional report so prepared was sought to be proved by recalling the said expert.

7. Shri R.C. Setia, the learned senior counsel appearing for the petitioner has submitted that in fact the said observations made by the learned trial Court that the handwriting expert had stated that the thumb impressions were not fit for comparison, was a complete misreading of the statement of the said expert. In fact the said handwriting expert had not made any such statement that he could not make comparison with the thumb impressions S3 and S4 on the mortgage deed and that those were not fit for comparison.

8. On the other hand Shri P.K. Gupta, the learned counsel appearing for the respondents have submitted that the additional report had already been prepared by the handwriting expert and the same was also placed on the record. It was only that the handwriting expert could be re-examined to prove the aforesaid report. Shri Gupta maintains that by this process no prejudice would be caused to the plaintiffs.

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