The court emphasized that the defendants had the opportunity to produce the expert earlier and found no illegality in rejecting the application under Order XVIII Rule 17A of the Code of Civil Procedure.

1. Dilsher Singh, one of the defendants, challenges in this revision petition order dated 13/10/1989 passed by Sub Judge Ist Class, Ferozepore whereby application filed by the defendants, to produce an Expert after the plaintiff had closed his evidence in rebuttal, was rejected.

2. Manjit Inder Singh filed a suit for declaration that he and other defendants Nos. 2 to 4 (Baljit Inder Singh and others) were entitled to inherit immovable and movable properties of Mohinder Singh deceased with consequential relief of injunction restraining the defendants from alienating any part of the property in dispute. The evidence of the plaintiff was earlier closed and subsequently the suit was dismissed. An appeal was taken to the appellate Court against the said judgment and decree which was allowed and the case was remanded. Thereafter, the trial Court gave opportunity to the plaintiff to produce his evidence and defendants were also given an opportunity to produce their evidence. The defendants were relying upon a will executed by Mohinder Singh in their favour. After the defendants closed their evidence, the plaintiff in rebuttal produced one expert. It was thereafter that the defendants moved an application for producing another expert. Initially, similar application was rejected on 27/09/1989 on the ground that relevant provision of law was not mentioned. However, subsequently the application was filed mentioning the same to be under Order XVIII, Rule 17A of the Code of Civil Procedure, which was declined vide the impunged order. Issue No. 3 framed in the suit is as under : "Whether Mohinder Singh executed a will dated 2-10-1983 in favour of Rani Mohinder Kaur and Dilsher Singh, if so, its effect?"

3. The onus to prove the aforesaid issue was on the defendants who had relied upon the will. It was open to the defendants, when called upon to produce evidence after the plaintiff closed his evidence to produce the expert, if so advised. The defendants felt satisfied for proving the will by producing other evidence i.e. the scribe and the attesting witnesses. It was thereafter that the plaintiff was to produce evidence in rebuttal and he produced one expert. After the plaintiff had produced evidence in rebuttal, there was no occasion for the defendants to further produce evidence in rebuttal of rebuttal.

4. Though the petition was filed under Order XVIII Rule 17A of the Code of Civil Procedure, however, the necessary ingredients of the provision were not fulfilled. As already noticed above, it was open to the defendants at the first instance to produce the expert if due diligence had been exercised. This is not a case where some evidence came to the notice of the defendants afterwards that an opportunity could be allowed under the provision to lead additional evidence. I find no illegality in the impugned order to interfere therewith.

5. For the reasons recorded above, this petition is dismissed with no order as to costs. Parties, through their counsel, are directed to appear in the trial Court on 21/05/1990. Petition dismissed.