VIJYANT AND ANOTHER Vs. SMT. ATTAR KAUR

JUDGEMENT

(1.) The revision is against the order rejecting the plea for sending the disputed documents of a family arrangement for comparison with the hand writing expert. The suit was filed for declaration and injunction on the basis of a family arrangement which was denied by the defendant. Evidently the burden of proof was on the plaintiff to establish the genuineness of the family arrangement and the plaintiff after closing the evidence had allowed the defendant to join issues on the points that arose for consideration. After defendant's evidence was over, the plaintiff again filed an application for additional evidence to send the documents for comparison by a hand writing expert. The plaintiff in the process was literally trying to open the case again for a fresh evidence regarding the genuineness of the document which was at issue. The application was rejected and the revision petition has been filed against the said order. The counsel states that if the examination of a witness was essential the Court should not fetter itself by technicalities. The counsel would argue that the fault of the counsel cannot be made to suffer by a party. Counsel relies on the judgment of the Supreme Court in K.K. Velusamy v. N. Palanisamy, 2011 86 AllLR 457 where the Court was holding that after the trial of the case had concluded and the arguments were heard the Court could permit fresh evidence if evidence was relevant to render justice and its non-production would prejudice the party. The Court observed that it would be competent for it to award appropriate cost by the other side to compensate the delay.

(2.) The issue is not whether the plaintiff cannot produce additional evidence. The issue was whether there was any justification for not securing the evidence at the time when the document was sought to be proved. The case pertain to the year 2006 and after the plaintiffs evidence in itself was closed in the year 2009 and the witnesses on the defence side had been brought and cross examined in 2010, the application was being filed towards the fag end of the trial and the Court observed that there was no reason to send the documents for comparison for admitted signatures and send it for hand writing expert. It is too well known a proposition of law that hand writing expert's comparison is not a perfect science and the value of evidence of such a hand writing expert itself has been doubted in several cases. It is never conclusive and it is always taken along with other evidence. If the plaintiff knew in his suit that his case was being contested by the defendant denying the document which he was relying upon, the plaintiff ought to have secured whatever proof was appropriate to pro3ute the case for exclusive possession. If the plaintiff had decided not to examine such a witness and after the examination of defendant's witnesses and cross examination if the plaintiff must be given an opportunity to re-open the case again the hand writing expert's evidence it will give room to afford opportunity to the defendant to give fresh evidence for further rebuttal. There is no need for multiplying the proceedings in the manner sought for. If the discretion was exercised by the trial Court not to allow for such an evidence I do not think it is a matter that would require any intervention at this stage in revision. The order is maintained and the revision is dismissed.