Kulwant Singh Petitioner, v. Makhan Singh .

S.S Grewal, J. — This petition is directed against the order of Additional Senior Sub Judge, Ajnala dated 5th of February, 1992, whereby application filed on behalf of the plaintiff under Order 18 Rule 17 and under Section 151 of the Code of Civil Procedure seeking permission of the Court to lead additional evidence for the purpose of producing handwriting expert was dismissed.

2. In brief facts relevant for the disposal of this petition are that the plaintiff had filed suit for recovery of Rs. 32,000/- on the basis of pronote and receipt dated 9.6.1975 The defendant in his written statement has denied the execution of the pronote in question and produced handwriting expert to substantiate the plea raised by him in this regard after the plaintiff had already closed his evidence in the affirmative.

3. The learned counsel for the parties were heard. On behalf of the plaintiff, it was submitted that since the defendant has produced Handwriting Expert the plaintiff may also be permitted to rebut the evidence of the Handwriting expert. Since the onus to prove due execution of the pronote and receipt in question was on the plaintiff, it was obligatory for the plaintiff to produce his entire evidence in affirmative to substantiate his aforesaid plea about the execution of the pronote and receipt in question. Admittedly the plaintiff closed his evidence in affirmative and thereafter the defendant in rebuttal produced the evidence of the Hand-writing expert to substantiate his pleas including the plea mat the pronote and the receipt were not executed by the defendant and do not bear his signatures. The plaintiff has no right to rebut the evidence of the defendant referred to above including that of the Handwriting expert.

4. Apart from that under Order 18 Rule 17-A of the Code of Civil Procedure, the plaintiff can be permitted to produce additional evidence in case he satisfied the court mat after the exercise of due diligence the evidence sought to be produced was not within his knowleedge or the same could not be produced by him at the time when the plaintiff was leading his evidence. It was not specifically pleaded by the plaintiff that the evidence which he now wants to produce was not within his knowledge or the same could not be produced by him at the time when he led his evidence in affirmative. Rather from the pleadings of the parties and the issues framed in this case the plaintiff very well knew from the very beginning that onus to prove the due execution of the pronote and the receipt in affirmative was on him and not on the defendant. In case the plaintiff had exercised due diligence, he could have easily produced the Handwriting expert when he produced his evidence in affirmative. In the instant case, by no stretch of imagination it can be reasonably inferred that the plaintiff was unaware of his duty to produce Hand-writing expert to prove the due execution of the pronote and the receipt in question when, he initially led evidence in rebuttal. Nor there is any allegation that he could not produce such evidence at the relevant time. The plaintiff thus cannot be permitted to produce Hand-writing expert at this late stage. I am fortified in my view on this point by Single Bench authority of this Court in Lakhbir Singh and others v. Kesar Kaur and others, 1984 CLJ (C&Cr) 599 wherein the plea raised on behalf of the plaintiff that the petitioners were rustic villagers or their counsel was negligent in not summoning the concerned officials and the relevant record from the office of the Sub Registrar, was held to be no ground for permitting additional evidence under Order 18 rule 17-A of the Code of Civil Procedure.

5. On behalf of the petitioner reliance was placed on Single Bench authority of this court in Bakhshish Singh @ Bakhshi… v. Tara Singh…., 1991 (1) LLR 82, wherein the plaintiff was permitted to lead additional evidence even though he was negligent in leading the evidence in affirmative which he wanted to produce now. In the aforecited authority in Bakhshish Singh's case, (supra) the main ingredients of the provisions of Order 18 Rule 17-A wherein it is obligatory for the party who seeks permission to lead evidence to satisfy the Court that after the exercise of due diligence any evidence was not within its knowledge or could not be produced by him at the time when that party was leading his evidence were not considered and the additional evidence was mainly allowed on the peculiar facts of the said case. The authority in Bakhshish Singh's case, (supra) is thus not applicable to the facts of the case in hand and is clearly distinguishable.

For the foregoing reasons, I do not find any merit in this petition and the same is hereby dismissed with no order as to costs.