CR No. 4536 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 4536 of 2010 Date of decision:- 13.10.2010 Chander Shekhar ......petitioner vs. Smt. Naraini Devi and others ......respondents CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. Ajay Jain, Advocate for the petitioner Mr. Anurag Jain, Advocate for respondent HEMANT GUPTA, J (ORAL) Defendant is in revision aggrieved against an order passed by learned trial Court on 10.6.2010, whereby the plaintiff has been permitted to examine the evidence in rebuttal. The plaintiff-respondent has filed a suit for declaration challenging the sale deed registered on 2.7.1999 executed by Kala Ram in favour of the defendant as illegal null and void. In the said suit, learned trial Court vide order dated 24.5.2006 framed the following 9 issues: - i) Whether the Sale Deed No. 2508 dated 2.7.1999 in favour of defendant No. 1 is illegal, null and void, without jurisdiction and based on fraud? OPD ii) Whether suit is not maintainable? OPD iii)Whether the plaintiff has no cause of action to file the suit? OPD iv)Whether the Civil Court has no jurisdiction to try and entertain the suit? OPD v) Whether the plaintiff is estopped from filing the present suit by her own Act and conduct? OPD vi)Whether the suit of the plaintiff is bad on account of non joinder and mis- joinder of necessary parties? OPD CR No. 4536 of 2010 -2- vii)Whether the plaintiff has not come to the Court with clean hands and has suppressed the true and material facts from the Court? OPD viii)Whether the suit of the plaintiff is time barred? OPD ix)Relief Plaintiff sought to examine Dhanpat in rebuttal. The plaintiff was allowed to examine the said witness vide the impugned order of the learned trial court. Learned counsel for the petitioner has vehemently argued that the plaintiff can lead rebuttal evidence in respect of the issues, the onus of which was on the defendant. It is contended that onus of issue Nos. 2 to 8 was on the defendant but all such issues are legal in nature. Still further, the evidence of Dhanpat is in rebuttal to issue No. 1. Therefore, the plaintiff wishes to examine a witness in rebuttal to an issue, the onus of which was on the plaintiff which is not permissible. Reliance is placed upon the judgment of Division Bench of this Court passed in Surjit Singh and others vs. Jagtar Singh and other, AIR 2007 Punjab 1, wherein it has been held that the plaintiff cannot be permitted to lead rebuttal evidence, the onus of which was on the plaintiff. Learned counsel for respondent asserts that the plaintiff is to produce two judgments dated 29.9.2000 passed by the Revenue Authority and 25.11.2006 passed by the Judicial Magistrate in respect of impersonation recorded against the defendant. Therefore, the order passed by the trial Court is justified in law. Reliance has also been placed upon a judgment of this Court reported as Kewal Singh vs. Jagjit Singh, 2008 (1) P.L.R. 173 and CR No. 919 of 2009 titled as Viram Lamaba vs. Rajender Parsad decided on 29.4.2009 and CR No. 2380 of 2009 titled as Ram Lal vs. Smt. Shanti & others decided on 24.9.2009 wherein, the plaintiff has CR No. 4536 of 2010 -3- been permitted to lead evidence on an issue, the onus of which was on the plaintiff. The issue decided by the Division Bench in Surjit Singh case (supra) is in respect of the right of the plaintiff to lead rebuttal evidence, the onus of which was on the plaintiff. It was held to the following effect: - 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......... ..........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.' In view of the said judgment, the plaintiff will not have a right to lead evidence in rebuttal on the issues of which the onus of proof was on the plaintiff. The plaintiff has a right to lead evidence on all issues including CR No. 4536 of 2010 -4- the issues, the onus of proof of which was on the defendant initially or reserve his right to lead evidence in rebuttal, the onus of which is on defendant. In the present case, the plaintiff cannot be permitted to lead evidence in rebuttal to issue No. 1 as the onus of such issue is on the plaintiff. In Kewal Singh case (supra), the plaintiff was permitted to lead evidence in affirmative for the reasons that the plaintiff was negligent in leading evidence and for such lapse plaintiff can be compensated with cost. In Viram Lamaba case (supra), the Court has permitted the plaintiff to lead additional evidence while considering the right of the plaintiff to lead evidence in rebuttal. In Ram Lal case (supra), it was found that evidence to be led by the plaintiff is aimed to fill up the lacuna but the Court found that it was necessary for fair and just decision of the lis between the parties and the plaintiff was allowed to lead evidence. The defendant was permitted to lead evidence to rebut such evidence. Therefore, in the cases above mentioned, the plaintiffs were permitted to lead additional evidence and not evidence in rebuttal. In view of the said fact, I do not find any case is made out for permitting the petitioner to lead evidence in rebuttal. The order passed by the trial Court is against the law laid down by the Division Bench in Surjit Singh case (Supra). Therefore, the revision is allowed and the order dated 10.6.2010 is set aside. (HEMANT GUPTA) JUDGE 13.10.2010 preeti