IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3841 of 2010(O&M) Date of Decision: November 29, 2011. Smt. Palvinder Kaur ...... PETITIONER. Versus Kulwinder Singh and others. ...... RESPONDENTS. CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. C.B. Goel, Advocate for the petitioner. None for respondents No.1 to 4. Mr. Kuldeep Tiwari, Advocate for respondents No.5, 6, 8 to 10. ***** RAM CHAND GUPTA, J.(Oral) C.M. No.15037-CII of 2010. The application is allowed subject to just exceptions. C.R. No.3841 of 2010. Petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India praying for setting aside order dated 18.05.2010 passed by learned Additional Civil Judge (Senior CR No.3841 of 2010(O&M) Division), Kurukshetra vide which the application under Section 65 of the Evidence Act for leading secondary evidence of Will (Ex.D1) was dismissed by learned trial Court. I have heard learned counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court. Briefly stated, present petitioner-plaintiff filed the suit for a decree of declaration that she along with defendants No.1 to 4 are owners to the extent of 1/5th share each in the land in dispute with further relief of declaration that the partition proceedings decided on 17.08.1988 by the Court of Assistant Collector 1st Grade-cum-Tehsildar were not binding upon her and respondents-defendants No.1 to 4 and further for declaration that vendees of respondents-defendants No.1 to 4 would be entitled to a share to the extent of area purchased by them out of the area of the share of respective vendors. It was also pleaded that no Will was executed by deceased Deep Singh in favour of respondents-defendants No.1 to 3 and that the plaintiff and defendant No.4 are also having 1/5th share in the property left by Deep Singh being his daughters. The mutation sanctioned on the basis of Will in favour of respondents-defendants No.1 to 3 has also been challenged. Respondents-defendants No.1 to 4 filed written statement admitting the claim of present petitioner-plaintiff and taken a plea that no such Will was allegedly executed by Deep Singh in favour of respondent- defendants No.1 to 3. The suit has been contested by respondents-defendants No.5 to 20 who are cosharers as well as vendees of respondents-defendants No.1 to 3. They have taken the plea that the Will was executed by Deep Singh on 26.06.1981 bequeathing all his property in favour of his widow 2 CR No.3841 of 2010(O&M) Parkash Kaur and his sons Kulwinder Singh, Santokh Singh, Harjinder Singh and Manjit Singh in equal shares and mutation has also been sanctioned in presence of present petitioner-plaintiff on 26.11.1981. Further plea has been taken that present petitioner-plaintiff was attesting witness of the Will executed by her father Deep Singh on 26.06.1981 and she has also taken the benefit of the said Will and also sold the property of her share including the property which was devolved upon her by way of said Will through her mother, to different persons. Plea has also been taken that the partition proceedings were duly decided amongst various cosharers as per the revenue record by Assistant Collector 1st Grade, Thanesar vide order dated 17.08.1988 and the parties came in possession of the land of their respective shares as per the partition proceedings which have become final. Hence, plea has been taken that present petitioner- plaintiff cannot challenge the said partition order in this suit as her mother was party to the partition proceedings as she is also claiming right in the property of her mother Parkash Kaur as well. From the pleadings of the parties, following issues were framed by learned trial Court:- (1) Whether plaintiff is entitled to decree of declaration to the effect that plaintiff alongwith defendants No.1 to 4 are owners of 1/5th share each in the suit land ? OPP (2) Whether plaintiff is entitled to get the share from 1/5th share to 1/7th share which is increased in her favour on account of death of Harvinder Singh brother of plaintiff and defendants No.1 to 4 ? OPP. 3 CR No.3841 of 2010(O&M) (3) Whether plaintiff is entitled to decree for joint possession by way of consequential relief ?OPP (4) Whether partition proceedings dated 17.08.88 passed by court of ACIG Thaneser, is any behalf in this case ? OPP. (5) Whether suit is time barred ? OPD (6) Whether plaintiff has no locus standi to file and maintain the present suit ? OPD (7) Whether present suit is not maintainable and is an abuse of processed law ? OPD (8) Whether plaintiff is estopped by her own act and conduct from filing the present suit ? OPD (9) Whether suit is not property valued for purpose of C.F. and jurisdiction ? OPD (10) Whether plaintiff has no cause of action to file the present suit ? OPP (11) Relief Thereafter, the evidence was adduced by both the parties. The case was at the stage of rebuttal evidence and arguments when the present application has been filed under Section 65 of the Evidence Act for permission to adduce secondary evidence of the Will by getting thumb impression of deceased Deep Singh on the alleged Will compared with his thumb impression existing on the certified copy of mortgage deed executed by him during his life time which is lying on the file of Sub Registrar. The said plea was declined by the learned trial Court vide impugned order. It has been contended by the learned counsel for the petitioner that the application may not be considered as an application for leading secondary evidence of the Will as original Will has already come on record 4 CR No.3841 of 2010(O&M) which was produced by contesting respondent-defendants. However, it is contended that the petitioner is having right to adduce evidence in rebuttal to the evidence adduced by the respondents-defendants No.5 to 20 to disprove the Will. On the other hand, it is contended by learned counsel for respondents No. 5, 6, 8 to 10 that they are not propounder of the Will and they have only placed the fact before this Court. It has further been contended that the Will is in favour of defendants-respondents No.1 to 3 and however, they have now colluded with the present petitioner-plaintiff and have filed written statement that no such Will was executed by Deep Singh in their favour, though they as well as present petitioner-plaintiff have taken the benefit under the said Will. They have also sold the property inherited by them by virtue of the said Will. It has further been contended that even the present petitioner has also claimed right in the property left by her mother who was one of the beneficiary of the Will and however, it is contended that after selling their respective shares to different persons by relying upon the said Will and after getting the partition proceedings finalized as per their respective shares recorded in the revenue record, petitioner-plaintiff has become dishonest and filed the present suit challenging the said partition proceedings in collusion with her near relatives i.e. defendants No.1 to 4. It has further been contended that present petitioner-plaintiff is one of the attesting witnesses of the said Will and she was also present at the time of sanctioning of mutation on the basis of said Will and that now as third party rights have been created on the basis of said partition and mutation, she along with respondents- defendants No.1 to 4 is denying the execution of the said Will. It is further contended that the Will is sought to be challenged by the plaintiff herself in the plaint and that respondents-defendants No.5 to 20 are not propounder 5 CR No.3841 of 2010(O&M) of the said Will and hence, contended that the said application is not bona fide one. It is further contended that there is no issue regarding the Will onus of which was placed on respondents No.5 to 20 and hence, it is contended that petitioner-plaintiff is having no right to lead evidence in rebuttal as the evidence was of affirmative as onus of main issues i.e. issues No.1 and 2 was upon the petitioner-plaintiff. Law on the point has been settled by Division Bench judgment of this Court in Surjit Singh and others v. Jagtar Singh and other, 2007(1) RCR (Civil) 537: 2007(2) CivCC 115, wherein it was held that under Order XVIII Rule 3 of the Code, a party cannot be permitted to lead evidence in rebuttal on a issue for which burden of proof was on that party. Relevant paragraph of the same reads as under:- “15. In our opinion, Order 18 Rule 3 of the CPC would not give a right to the plaintiff to lead evidence in rebuttal on issues in which the onus of proof is on the plaintiff. Accepting such an interpretation would be to ignore a vital part of Order 18 Rule 3 of the CPC. The rule clearly postulates that “the party beginning, may, at his option, either produce his evidence on these issues or reserve it by way of answer to the evidence produced by the other parties”. No matter, how liberally a provision in the statute is required to be interpreted, by interpretation it cannot be amended. Whilst construing a statutory provision the Court cannot reconstruct it. The rule consciously provides the parties with an option either to produce the evidence in support of the issues or to reserve it by making a statement to that effect. The statement itself may well be liberally construed to avoid any unnecessary technical obstacles. One such example has been given by the Division Bench in the case of Smt. Jaswant Kaur (supra). It has been held that if a statement is made by the Advocate for the plaintiff that “the plaintiff closes its evidence in the affirmative only,” 6 CR No.3841 of 2010(O&M) the same would be read to mean that the plaintiff had reserved its right to lead evidence in rebuttal. We are, therefore, unable to agree with the observations made by the learned Single Judge in the case of Kashmir Kaur (supra) that he is entitled to lead evidence in rebuttal as a matter of right. In our opinion, this observation runs contrary to the observations of the Division Bench in Jaswant Kaur's case (supra). The Division Bench has even fixed the maximum time on which the plaintiff has to exercise his option to reserve the right to lead evidence in rebuttal. It has been clearly held that such a reservation has to be made at the time of the close of the evidence of the plaintiff. We are also unable to agree with the observations of the learned Single Judge in the case of M/s Punjab Steel Corporation (supra). In that case the plaintiff sought to lead evidence in rebuttal, after the close of the evidence of the defence. At that stage, the plaintiff cannot be permitted to reserve the right to lead evidence in rebuttal. The observations of the learned Single Judge run contrary to the law laid down by the Division Bench in the case of Smt.Jaswant Kaur (supra). No doubt, the Division Bench clearly lays down that an overly strict view cannot be taken about the modality of reserving the right of rebuttal. But at the same time, it has been held that the last stage for exercising option to reserve the right of rebuttal can well be before the other party begins its evidence. We are in respectful agreement with the aforesaid observations of the Division Bench in the case of Jaswant Kaur (supra) and R.N.Mittal, J. in National Fertilizers Ltd. (supra).” The said legal proposition was reiterated by this Court in another Division Bench judgment of this Court in Jagdev Singh and others v. Darshan Singh and others, 2007(1) RCR (Civil) 794: 2007(2) CivCC 261, wherein it was also observed that plaintiff cannot as a matter of right lead evidence in rebuttal on issues, the onus of proof of which was on 7 CR No.3841 of 2010(O&M) him and the same was to be seen on the facts and circumstances of each case. It is pertinent to reproduce Order 18 Rule 3 of the Code of Civil Procedure which reads as under:- 3. Evidence where several issues.- Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.” Bare perusal of the above provision and the law laid down by Division Bench of this Court show that a party is having right to lead evidence in rebuttal only on the issue, onus of which is on the other party provided the evidence was not adduced on the said issue in affirmative and right of rebuttal was reserved by the plaintiff. However, it is not such a case. Will was in the knowledge of the present petitioner-plaintiff since the very beginning. Reference of the Will was given by the present petitioner- plaintiff in the plaint itself. Even she was the attesting witness to the Will Ex.D1. Hence, there is force in the arguments of learned counsel for respondents No.5, 6, 8 to 10 that application is not a bone fide one and the same has been filed just to delay the decision of the present litigation. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by Additional Civil Judge (Senior Division), Kurukshetra in passing the impugned order or grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. 8 CR No.3841 of 2010(O&M) Moreover, law has been well settled by Hon’ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675: AIR 2003 SC 3044: 2004(1) RCR (Civil) 147 that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:- “Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.” Hence, the present revision petition is, hereby, dismissed being devoid of any merit. ( RAM CHAND GUPTA ) November 29, 2011. JUDGE Sachin M. 9