SUMAN KAPOOR Vs. RAKESH KUMAR

JUDGEMENT

(1.) AGGRIEVED by the order dated 15th November, 2014 whereby the application under Section 151 CPC of the petitioner/plaintiff in suit CS No. 359/2012 titled as 'suman Kapoor Aka Seema Kapoor vs. Rakesh Kumar' seeking permission to lead additional evidence was declined, the petitioner prefers the present petition. Vide the impugned order Learned Additional District Judge held that issues in the suit were settled on 19th March, 2008, the parties had already led their evidence and the matter was listed for final arguments when the application was filed by the petitioner/plaintiff seeking permission to lead additional evidence. The reason assigned for permission to lead additional evidence was that since the defendant has raised controversy about the documents Ex.PW1/2 to PW1/4, hence, the opinion of the handwriting expert was necessary. The learned Additional District Judge held that it was not the case of the petitioner/plaintiff that she was not aware of the defence raised by the defendant at the time of leading her evidence or cross examining the defendant's witness. Thus, the application was dismissed with the cost of Rs. 5,000/ -.

(2.) LEARNED counsel for the petitioner states that in the suit the petitioner/plaintiff has relied upon the documents which were duly signed by the defendant i.e. Ex.PW1/2 to Ex. PW1/4. Since in cross examination the defendant did not admit these documents, the petitioner/plaintiff is required to prove the same by leading additional evidence. Learned counsel for the petitioner relies upon the decision of this Court in Subash Chander Vs. Bagwan Yadav : 2010 VI AD Delhi 96 to contend that the Court even has suo moto power to call additional evidence or expert evidence. Once the attesting witness denies having witnessed the documents the same cannot be proved under Section 73 of the Indian Evidence Act, however, this proposition does not relate to a case where the executant of the document denies the signature. The suit for specific performance filed by the petitioner/plaintiff is based upon these documents only and in case the same are not permitted to be proved by leading additional evidence, serious prejudice would be caused to the petitioner/plaintiff. The Court is even empowered to direct commission for scientific evidence under Order XXVI Rule 10(b) CPC. Only after the witness denies executing the documents, the petitioner/plaintiff was required to prove the same.

(3.) HEARD learned counsel for the parties.