LAWS(P&H)-1990-4-5

DILSHER SINGH Vs. MANJIT INDER SINGH

Decided On April 30, 1990
DILSHER SINGH Appellant
V/S
MANJIT INDER SINGH Respondents

JUDGEMENT

(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.