Rukiya Begam And Others v. Gogi Ram
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CORAM: HON'BLE MR. JUSTICE ( )*+,
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()) Mr. Ravinder S. Budhwar, Advocate for the respondent.
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The instant revision petition, preferred under Article 227 of the Constitution of India, assails the order dated 15.01.2025 (Annexure P-9) passed by the court of Civil Judge (Junior Division), Indri (District Karnal) vide which the application dated 20.12.2024 (Annexure P-7) filed by the respondent/plaintiff (Gogi Ram) for additional evidence was allowed. 2.
The facts, as emanating from the present revision petition, are that the respondent-plaintiff instituted a suit (Annexure P-1) for declaration
that the sale deed dated 03.04.2017 stated to have been executed by the respondent/plaintiff in favour of the petitioners/defendants was illegal, null and void and was not binding upon the respondent-plaintiff. Consequential, relief of permanent injunction restraining the petitioners/defendants from interfering in the peaceful possession of the suit land, was also claimed. 3.
The suit was opposed by way of written statement (Annexure P-2) wherein apart from certain preliminary objections as regards maintainability, locus standi, estoppel, cause of action etc. having been raised, it was averred on merits that the full and final sale consideration had been paid by the defendants to the plaintiff on 15.06.2013 and the plaintiff had executed a receipt in this regard stating that he had received the full and final sale consideration of Rs. 21,45,000/-.
4.
From the pleadings of the parties, issues were framed vide order dated 16.12.2017 (Annexure P-4) after which the plaintiff led his evidence. Vide order dated 07.02.2024 (Annexure P-5), evidence of the plaintiff was closed by the Court observing that despite having availed many effective opportunities, the plaintiff had not concluded his evidence. The evidence of the defendants then started which was also closed on 14.11.2024. 5.
Thereafter, an application (Annexure P-7) for additional evidence was moved by the plaintiff vide which the plaintiff sought permission to examine a Fingerprint and Handwriting Expert for the purpose of comparing thumb impressions of the plaintiff on the alleged receipt dated 15.06.2013 with other admitted signatures. The said application was opposed by way of a reply (Annexure P-8). By way of the impugned order, the said application was allowed leading to filing of the
/ present revision petition.
6.
I have heard learned counsel for the parties. 7.
Learned counsel for the petitioners submits that the impugned order is not sustainable. He submits that issues in the case were framed as far back as on 16.12.2017 after which, the plaintiff availed 20 opportunities to lead and conclude his evidence but since the same was not done, evidence of the plaintiff was closed under orders of the Court. He submits that only when the defendants examined a Fingerprint and Handwriting Expert, the plaintiff filed the application for examining a Fingerprint and Handwriting Expert with a view to fill up the lacunae. He submits that the plaintiff was required to examine the Expert in his own evidence. Learned counsel submits that no replication was filed by the plaintiff to the averments made in the written statement about the execution of the receipt, meaning thereby that the execution of the receipt stood admitted. He submits that due to these circumstances, the impugned order is not sustainable. 8.
Per contra, learned counsel representing the respondent submits that there is no illegality or infirmity in the impugned order. He submits that once the defendants had claimed the execution of the receipt in the written statement, the onus to prove the same was on them and the plaintiff had every right to lead evidence in rebuttal. He submits that since the evidence had been closed under the orders of the Court and he had not been in a position to retain his right of evidence in rebuttal, he had moved the application for additional evidence which was rightly allowed by the trial Court.
9.
I have considered the submissions made by learned counsel for
the parties.
10.
No doubt, issues were framed as far back as on 16.12.2017, and after having granted sufficient opportunities to the plaintiff, evidence was closed by the Court on 07.02.2024. Even the evidence of the defendants was closed on 14.11.2024. It is thereafter, that the plaintiff moved an application for additional evidence.
11.
It has to be borne in mind that it was in the written statement that the defendants took a stand that a receipt had been executed vide which the entire sale consideration had been paid to the plaintiff. Once the said fact had been pleaded in the written statement, naturally the onus to prove the same was on the defendants and the plaintiff was expected to lead evidence in the rebuttal as regards non-execution of the receipt. To prove the execution of the receipt, the defendants examined a Fingerprint and Handwriting Expert. The plaintiff, in the considered opinion of this Court, had the right to produce evidence in rebuttal. However, since no right had been reserved nor was there any statement closing the evidence in the affirmative and the evidence had been closed by orders of the Court, the plaintiff had rightly moved an application for additional evidence. It is further to be borne in mind that matters should be decided on merits and parties should not be non-suited on technicalities. 12.
In the considered opinion of this Court, the evidence of the Fingerprint and Handwriting Expert to be examined by the plaintiff would be essential for the just decision of the case as also to balance the equities. 13.
&& $)*+,, I do not find any illegality or infirmity# - ! %#) ')$)* & $$) impugned order warranting
interference. Resultantly, the revision petition is ' $ "$% )$ ' ) !$)!&& $)*+,$) )$ ./ $)*!((+)&!) #)'!,#!+ !$$)( $ ' -( )*+,.
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