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ALKA SARIN, J. (ORAL) –

1. The present revision petition has been filed challenging the order dated 16.12.2023 (Annexure P-1) vide which an application to produce additional evidence was dismissed and the order dated 06.10.2023 (Annexure P-2) vide which an application to lead evidence in rebuttal was also dismissed.

2. Learned counsel for the plaintiff-petitioner, at the outset, states that he does not wish to lay any challenge to the order dated 06.10.2023 (Annexure P-2) passed on the application for leading evidence in rebuttal. Learned counsel, however, states that the suit filed by the plaintiff-petitioner is for possession by way of specific performance of agreement to sell dated 13.02.2012 and in the alternative for recovery of an amount of ?10,60,000 along with interest. In the written statement (Annexure P-5), a specific stand taken by defendant-respondent No.1 is that her signatures had been taken on blank papers however there was no denial that the signatures/thumb impression were of the defendant-respondent. It is further the contention of the learned counsel that during cross-examination (Annexure P-8), defendant-respondent No.1 who appeared as DW-1 had stated that she had never executed the agreement to sell and that it was wrong that Ex.P2, Ex.P3 and Ex.P4 bear her signatures and thumb impressions. She further stated that Ex.P2 also does not bear the signatures of her husband as consenting witness. Learned counsel would further contend that since the stand that the agreement to sell does not bear her signatures/thumb impression was taken by defendant-respondent No.1 for the first time in the cross-examination, the application for additional evidence for leading the evidence of a handwriting expert ought to have been allowed.

3. Per contra, learned counsel for defendant-respondent No.1 would contend that sufficient opportunities were given to the plaintiff-petitioner to lead his evidence however he failed to lead the evidence of the handwriting expert to show that the signatures were that of defendant-respondent No.1 and as such no fault can be found with the impugned order.

4. Heard.

5. In the present case in the written statement (Annexure P-5) the specific stand taken by defendant-respondent No.1 is that the signatures/thumb impression had been taken on a blank piece of paper. However, in the entire written statement defendant-respondent No.1 did not deny the signatures on the said documents though it was the stand taken that the agreement was a result of forgery and that the blank papers had been converted into an agreement to sell. It is for the first time in the cross-examination that defendant-respondent No.1 denied her signatures/thumb impression on the agreement to sell as well as Ex.P2, Ex.P3 and Ex.P4.

6. Initially the plaintiff-petitioner had filed an application for leading evidence in rebuttal which was dismissed. Though the order passed in the said application dated 06.10.2023 (Annexure P-2) is also challenged herein, however, at the time of arguments today, learned counsel for the plaintiff-petitioner has given up the argument qua the same and has stated that he does not wish to challenge the order passed on the application for leading evidence in rebuttal. Only the application for leading additional evidence (Annexure P-11) has been pressed and the order passed thereupon dated 16.12.2023 (Annexure P-1) has been impugned. The revision petition in so far as the challenge to the order dated 06.10.2023 ( Annexure P-2) is concerned is dismissed as not pressed.

7. Once defendant-respondent No.1 had not denied her signatures/thumb impression in the written statement and for the first time denied the same in her cross-examination, the plaintiff-petitioner ought to have been given an opportunity to lead additional evidence to counter the same. The argument of the learned counsel for defendant-respondent No.1 that numerous opportunities were taken by the plaintiff-petitioner to lead evidence cannot be accepted in the present case inasmuch as this was not an evidence which could have been led in the affirmative as this was never the stand of defendant-respondent No.1 that the agreement to sell, Ex.P2, Ex.P3 and Ex.P4 did not bear her signatures or thumb impressions. In the absence of any such stand having been taken, there was no question of the plaintiff-petitioner leading any evidence to prove that the signatures were hers.

8. In view of the above, the present revision petition is allowed and the order dated 16.12.2023 (Annexure P-1) is set aside. Accordingly, the application for additional evidence (Annexure P-11) is allowed. The plaintiff-petitioner is granted one effective opportunity to lead his evidence. The defendant-respondents would also have the right to lead their evidence in response, for which one effective opportunity is granted to them as well for the said purpose.

9. Needless to say, any observations made herein shall not be treated as an expression of opinion on the merits of the case.

10. Pending applications, if any, also stand disposed off.

Petition allowed.

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