Punjab-Haryana High Court

Smt. Kashmir Kaur vs Smt. Bachan Kaur And Anr. on 18 November, 1999

Equivalent citations: (2000) 124 PLR 606

Author: V Bali

Bench: V Bali

JUDGMENT V.K. Bali, J.

1. Challenge herein is to an order dated 31.3.1999 passed by the learned Subordinate Judge declining the prayer of the petitioner who happens to be a plaintiff in the main lis to adduce additional evidence by way of producing a handwriting expert.

2. Before the contentions of the learned counsel representing the parties for and against are noticed, it will be useful to extract, even though in brief, facts culminating into filing of the present petition.

3. Petitioner herein, namely Kashmir Kaur happens to be young widow of Balbir Singh. The husband of the petitioner died on 15.5.1991 when the petitioner was only 23 years of age. An unsavoury dispute immediately on demise of Balbir Singh came into offing when none other than the mother-in-law of the plaintiff resisted inheritance of the estate left by Balbir Singh to the petitioner. This led to the filing of the civil suit by the petitioner who propounded a Will. It was stated that the husband had executed a Will and the petitioner would succeed to the entire estate-left by Balbir Singh. This suit was resisted by the respondent-mother-in-law who naturally challenged the due execution and validity of the Will. The learned trial Court on the pleadings of the parties, thus, framed an all important issue; “Whether Balbir Singh executed a Will dated 6.2.1991 in favour of plaintiff Kashmir Kaur? OPP.

4. In her endeavor to discharge the onus of issue referred to above, the petitioner examined two witnesses; one scribe and one attesting witness of the Will. Sufficient evidence having been led with regard to due executing and validity of the Will, naturally, onus shifted to the respondent to rebut the said evidence. An application was made before the trial Court to examine a handwriting expert to determine as to whether the signatures of the testator appended on the Will were genuine. The said application was allowed and the handwriting expert was examined on behalf of the respondent mother-in-law. It is at this stage that the present application was filed for producing additional evidence under Order 18 Rule 17-A of the Code of Civil Procedure permitting the petitioner also to examine the hand-writing expert, obviously with a view to show that the signatures appended on the Will by the testator were genuine. As mentioned above, it is this application of the petitioner which has been dismissed and it is the said order which has been impugned in the present petition.

5. Before I might determine the controversy in light of the contentions raised by the learned counsel representing the parties, it will be useful to mention that civil matters are decided on preponderance of evidence and the onus of an issue, be it initially placed on one party or the other, keeps on shifting during the currency of the trial. In a given case like the present, where onus of issue regarding execution and validity of the Will was on the plaintiff i.e., petitioner herein, it was discharged by examining the scribe and one of the attesting witnesses of the Will. The petitioner, in fact, endeavoured to discharge the onus placed on her by examining independent witnesses. In rebuttal, as mentioned above the respondent chose to examine the handwriting expert with a view to show that the signatures of Balbir Singh appended on the Will were not genuine. It is too well settled that execution and validity of a Will is proved by direct evidence i.e. by examining scribe and witnesses of the concerned document and that evidence of an expert, in the present case, evidence of Handwriting Expert, is only an opinion and, therefore, it may not be absolutely essential for a party to examine a handwriting expert in the first instance i.e. at the time of examining evidence in affirmative. However, the moment respondent examined the handwriting expert, petitioner could well take it that the onus again shifted on her to rebut the said evidence. In these circumstances, it was perhaps not a case which may strictly fall under the leading of additional evidence. The petitioner having closed her evidence in affirmative on the issue, referred to above, could well be permitted to examine the evidence in rebuttal to the evidence led by the respondent on the said issue. This Court is, thus, of the firm view that if asked for, the Court might have given permission to examine the handwriting expert, even though relating to an issue, onus whereof was initially to be discharged by the petitioner. It is in this background that it has been observed earlier that onus to prove an issue keeps on shifting throughout the trial. The Court is, thus, of the view that the petitioner is entitled to lead evidence in rebuttal as a matter of right and if, in this endeavor an application for additional evidence was made, the same ought to have been considered to achieve the same purpose and thus, ought to have been allowed.

6. The view that has been taken by this Court in the matter otherwise also appears to be in consonance with the provisions of Code of Civil Procedure as well. Order 18 deals with examination of witnesses. By virtue of Rule 1 of Order 18, plaintiff has the right to begin unless the defendant admits the facts alleged by him. As per rule 2 of Order 18, on the day fixed for hearing of the suit or any other day to which the hearing is adjourned, the party having the right to begin has to state his case and produce evidence in support of the issues which he is bound to prove. Rule 2 of Order 18 further provides that the other party can then state his case and produce his evidence and may then address the Court generally on the whole case. By virtue of Rule 3 of Order 18, the party beginning may then reply generally on the whole case. The provisions of Order 18 do, thus, prescribe the procedure of recording evidence which in turn entails a right of plaintiff to lead evidence in rebuttal, even with regard to an issue, onus whereof was initially upon him. The procedure prescribed for recording evidence, as envisaged in Order 18, is based upon common sense. Insofar as plaintiff is concerned, while examining his evidence, in affirmative, he has no idea as to by which evidence, the defendant is to rebut his evidence, whereas the defendant, while leading his evidence, knows exactly what evidence has been led by the plaintiff and by which evidence he has to rebut the same. The defendant is, thus, permitted to lead evidence with regard to whole case which right has been given to the plaintiff by way of rebuttal, i.e., he too can address on the entire case. The whole case mentioned in various rules of Order 18 does include, in its sweep, the issues, onus whereof is upon the plaintiff. At this stage, it may be relevant to mention that this is law of pleadings as well. When the plaintiff files a suit, defendants knows what exactly has been disclosed therein. He is thus, given a right to file written statement wherein he may not only answer the pleadings made in the plaint but may also press into service additional pleas which can entail dismissal of the suit. The plaintiff is then given a right to replication and the same is not confined only to additional pleas taken in the written statement. The plaintiff has also right to file reply to the written statement as a whole.

7. Before I might part with this order, it may be mentioned here that this has been the consistent case of the petitioner that the Lawyer who was initially engaged had advised the petitioner that it will be enough for her to examine the scribe and attesting witness of the Will and there shall be no necessity to examine the handwriting expert in the first instance. It is, thus, acting upon the legal advice of the counsel that the petitioner did not examine the handwriting expert at the first stage when the petitioner had not closed her evidence in affirmative. That ground in itself was enough to permit the petitioner to lead additional evidence. Looked from any angle, the impugned order, deserves to be set aside. So ordered. The application of the petitioner for examining the handwriting expert is allowed. The parties, through, their counsel are directed to appear before the trial Judge on the date already fixed. No costs. Copy of the order be given Dasti under the signatures of Court Secretary of this Court.