Civil Revision No.6835 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.6835 of 2010(O&M) Date of Decision: November 14, 2011 Budh Ram .....Petitioner v. Om Parkash .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.N.S.Shekhawat, Advocate for the petitioner. Mr.Sanjay Mittal, Advocate for the respondent. ..... RAM CHAND GUPTA, J.(Oral) Petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India for setting aside order dated 7.10.2010, Annexure P1, passed by learned Civil Judge, (Senior Division), Rewari, vide which application filed by respondent-plaintiff for examining Shri Pardeep Narain, Chief Bureau, Dainik Bhaskar, as a witness has been allowed. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. Briefly stated, respondent-plaintiff filed this suit for a decree for specific performance of agreement to sell dated 7.4.2005, allegedly executed by respondent-defendant in favour of petitioner-plaintiff. On notice being issued, present petitioner-defendant denied the very execution of this agreement and the plea was taken that the same is forged and Civil Revision No.6835 of 2010(O&M) -2- fabricated document. From pleadings of the parties, the following issues were framed by learned trial Court on 17.11.2009:- “1. Whether on dated 7.4.2005 defendant agreed to sell the suit property to the plaintiff for a sum of Rs.25,45,312.50 and received Rs.5,00,000/- as an earnest money and executed a written agreement in this behalf? OPP 2. Whether plaintiff was ready and willing and had been ready and willing to perform his part of contract? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD 5. Whether the present suit is barred u/o 7 Rule 11 CPC? OPD 6. Whether the present suit is bad for non joinder for necessary parties? OPD 7. Whether the plaintiff has no cause of action to file the present suit? OPD 8. Relief.” Evidence of both the parties was concluded. Case was fixed for rebuttal and arguments, when the present application, Annexure P3, was filed by respondent-plaintiff for permission to deposit diet money of a witness namely, Shri Pardeep Narain, Chief Bureau, Dainik Bhaskar. In this application, it has been stated that affidavit Ex.DX has been wrongly attested by Satbir Singh Yadav, who was examined as a witness by present petitioner-defendant and hence Shri Pardeep Narain, Chief Bureau, Dainik Bhaskar, was to be examined as a witness either in rebuttal or as an additional evidence. The application was contested by petitioner-defendant and, however, the same was allowed by learned trial Court vide impugned Civil Revision No.6835 of 2010(O&M) -3- order against which the present revision petition has been filed. It has been vehemently contended by learned counsel for the petitioner-defendant that the application itself is a vague one. It has been contended that onus to prove main issues, i.e., issues no.1 and 2 was on respondent-plaintiff and he already adduced evidence on such issues. Further contends that the other issues are only legal in nature, onus of which was upon petitioner-defendant and that the evidence now sought to be adduced cannot be said to be in rebuttal to any issue, onus of which was upon present petitioner-defendant. It is further contended that the witness also cannot be allowed to be examined by way of additional evidence as the evidence is not as such which was not in the knowledge of respondent- plaintiff and which could not be adduced by him despite due diligence at the time when evidence was being led by him in affirmative. It is also contended that moreover the witness sought to be examined is not at all relevant for the decision of present suit. On the other hand, it has been contended by learned counsel for the respondent-plaintiff that the witness is necessary to be examined to discredit the veracity of DW3-Satbir Singh Yadav, Advocate, Notary Public, District Court, Rewari, as he is in the habit of attesting false affidavits. He has also contended that the witness be permitted to be examined either in rebuttal or by way of additional evidence. There is force in the argument of learned counsel for the petitioner-defendant that there are different parameters for allowing evidence to be adduced in rebuttal and for allowing additional evidence to be adduced by either of the parties. So far as rebuttal evidence is concerned, it is pertinent to Civil Revision No.6835 of 2010(O&M) -4- reproduce Order XVIII Rule 3 of the Code of Civil Procedure (for short `the Code'), 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.” A bare perusal of aforementioned provision shows that rebuttal evidence can be allowed on an issue onus to prove the same was on the other party, provided plaintiff has reserved its right to adduce evidence in rebuttal on the said issue and has not led evidence on the issue while adducing evidence in affirmative. 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 Civil Revision No.6835 of 2010(O&M) -5- 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,” 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 Civil Revision No.6835 of 2010(O&M) -6- 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).” In the present case, the onus to prove the main issue regarding execution of agreement to sell in favour of respondent-plaintiff was upon him and he has already adduced evidence in affirmative. The other issues onus of which is on present petitioner-defendant are only legal in nature and hence, it cannot be said that respondent-plaintiff is having any right to lead evidence in rebuttal when he has already led evidence on all the issues in affirmative. So far as the request of learned counsel for the respondent- plaintiff that he be permitted to examine this witness by way of additional evidence is concerned, law has been well settled by Hon'ble Apex Court in Salem Advocate's Bar Association v. Union of India 2005(3) RCR (Civil) 530 that even after deletion of Order XVIII Rule 17A of the Code, additional evidence can be allowed and, however, the same can be allowed if party intend to lead evidence is able to show to the court that the evidence was not in his knowledge and that he could not adduce the same despite due diligence when he was adducing evidence. Relevant paragraph of the same reads as under:- “14..... On a party satisfying the Court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the Court may permit leading of such evidence at a later stage on such terms as may appear to be just.” However, the present case cannot be said to be such in which Civil Revision No.6835 of 2010(O&M) -7- the application can be allowed in view of the aforementioned parameters laid down by Hon'ble Apex Court. Moreover, in my view the witness to be examined is not at all necessary for the decision of present case. The cross- examination of DW3-Satbir Singh Yadav has already been concluded by respondent-plaintiff and no such alleged documents were put to him in the cross-examination to discredit his veracity. In view of the aforementioned facts, I am of the view that illegality has been committed by learned trial Court in allowing the application filed by respondent-plaintiff for examining one witness, namely, Shri Pardeep Narayan, Chief Bureau Dainik Bhaskar. Hence, the present revision petition is accepted. Impugned order dated 7.10.2010 passed by learned trial Court is set aside. 14.11.2011 (Ram Chand Gupta) meenu Judge