(1.) THE present has been filed by the petitioners, who are plaintiffs in trial court, challenging the order dated 22.4.2008 passed by the learned Civil Judge (Junior Division), Faridabad in Civil Suit No. 407 of 1998 vide which the application moved by the petitioners to lead additional evidence as provided under Order 18 Rule 17 Civil Procedure Code in the shape of examining handwriting expert, has been rejected.
(2.) COUNSEL for the petitioners has submitted that the petitioners had filed a suit for possession in respect of the land for which the suit was filed, wherein it was contended by the petitioners that respondents have started claiming that they have purchased the suit land from Sh. Durga @ Durga Parsad, since deceased, vide registered sale deed. It has further been claimed that the suit land was under lease with the respondents for a period of 99 years commencing from 27.7.1967. On that basis, it has further been claimed by the respondents that they have got mutation on the basis of the alleged sale deed and the consequent entries in the revenue records including mutation in respect of the suit land are the outcome of fraud and forgery. The alleged transactions and documents are void, ab-initio, non est, nullity, illegal and do not adversely affect the rights of the plaintiffs in the suit land in any manner nor it confer any right, interest or title in favour of the respondents. On the basis of this, the counsel contends that the court has wrongly put the burden upon the plaintiffs to prove that the sale deed and the consequent revenue entries are ab-initio, non est, nullity and illegal and the plaintiffs have to prove the issue in their affirmative evidence. He submits that as the sale deed and the mutation have been produced by the respondents during their evidence before the trial court, the petitioners did not have any opportunity to rebut theevidence and it cannot be proved and the petitioners cannot, in the rebuttal evidence, prove the issue but can only rebut the evidence led by the defendants. He submits that in the light of this, the application under Order 18 Rule 17 for permission to examine the handwriting expert by way of additional evidence filed by the petitioners before the trial court should have been allowed as it would assist the court to arrive at a correct decision with regard to the genuineness of the sale deed and mutation. The counsel for the petitioners relies on Order 14 Rule 5 Civil Procedure Code to contend that the court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, which may be necessary for determining the matters in controversy between the parties. He further contends that the court can similarly strike out any issue that according to it was to be wrongly framed or introduced. On that basis, he states that the court has the powers to amend the issues framed but the court has not exercised the said powers. He further relying on Order 18 Rule 17 submits that additional evidence can be led at any stage but that is all subject to as if the court thinks fit.
(3.) I have heard the counsel for the parties and have gone through the records of the case with their able assistance. Perusal of the plaint and the written statement would show that there is a positive assertion on behalf of the petitioners in their plaint, wherein a claim has been made by them with regard to the sale deed and the mutation and all consequential transactions with relation to the suit land being an outcome of fraud and forgery. The transactions and documents are void, ab-initio, non est, nullity, illegal etc. having made such a positive assertion in the suit.In my considered view, the issue has been framed by the court and has also rightly put the onus to proving the same on the petitioners. It is an admitted legal position before me by the counsel for the parties that in rebuttal, it is not the stage to prove the issue, rather plaintiffs can only rebut the evidence led by the defendants. It has further been conceded that no counter claim hasbeen filed by the defendants in the suit against which the plaintiffs have a right to lead their evidence in rebuttal. That being the position, the contentions raised by the counsel for the petitioners cannot be accepted specially when the parties have already led their respective evidence and the case is fixed for rebuttal evidence before the court below. This is an old case, which was instituted on 30.10.1998. Ten years have since passed and no decision as yet has been reached and the matter is being delayed. Further, as held above, the burden is upon the petitioners to prove that the sale deed and consequent revenue entries are ab-initio, non est, nullity and illegal as the same has been asserted by the petitioners in their suit and, therefore, they cannot, at this stage, be allowed to produce a positive evidence in rubuttal.