IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.467 of 2010 Date of decision: 10.3.2011 Neelam Rai …. Petitioner Versus Surjit Kumar & Ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? Yes For the petitioner: Mr.Partap Singh Goverdhan Advocate. For the respondents: Mr. P.C Sharma, Advocate. _____________________________________________ Deepak Gupta, J.(Oral) This petition is directed against the order dated 30.11.2010 passed by the learned Civil Judge (Sr. Division) Kasauli, District Solan whereby he rejected the application filed by the petitioner (hereinafter referred to as the ‘defendant’) and permitted the plaintiffs-respondents to lead evidence generally on the whole case, i.e., on all the issues framed. 2 To understand the controversy between the parties, it would be pertinent to mention that the following issues were framed on 6.4.2005:- 1. Whether the plaintiffs are owner in possession of the suit land? OPP 2. Issue No.1 is proved in affirmative, whether the plaintiff is entitled for decree for permanent injunction as prayed for? OPP 3. Whether the order passed by the learned Divisional Commissioner and Ld.Financial Commissioner is wrong, null and void.?OPP 4. Whether the plaintiff has no locus standi to file the present suit as alleged? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the suit is bad for non-joinder of necessary parties? OPD. 7. Relief. The onus to prove the first three issues was on the plaintiffs and onus to prove issues No. 4 to 6 was on the defendants. The plaintiffs led evidence on the first three issues and closed their evidence in the affirmative on 7.3.2008. The defendants thereafter led evidence and closed their evidence on 4.8.2010. Thereafter, the plaintiffs filed affidavits of S/Sh. Bishan 3 Singh, Hem Raj, Bala Dutt and also filed a list of witnesses of as many as 7 witnesses to be examined in rebuttal. Then the defendants filed an application claiming that the plaintiffs had no right to lead rebuttal evidence on issues No.1 to 3 and submitted that issues No. 4 to 6 were legal in nature and no rebuttal evidence was required to be led. It would also be pertinent to mention that during the course of the hearing of this application, the learned counsel for the defendants made a statement that as far as issue No.4 is concerned, the defendants do not press this issue and as far as issues No.5 and 6 are concerned, they are wholly legal issues and as such the plaintiffs are not entitled to lead rebuttal evidence. The learned Trial Court relying upon the judgment of the Punjab & Haryana High Court in M/s.Punjab Steel Corporation, Batala Vs. M.S.T.C. Limited, Calcutta, 2000 (1) Punjab Law Reporter, 99 came to the conclusion that the plaintiffs are entitled to lead evidence generally on the whole case and, therefore, dismissed this application filed by the defendants. Hence the present petition. 4 I have heard Sh.Partap Singh Goverdhan, learned counsel for the petitioner and Sh.P.C. Sharma, learned counsel for the respondents. The main issue involved in this case is with regard to the interpretation of order 18 Rule 3 CPC which reads as follows:- “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.” According to the learned Trial Court and which version is supported by Sh.P.C.Sharma, Advocate, when a party beginning is given a right to lead evidence in rebuttal, it can reply generally on the whole case and in this regard support is drawn from the last portion of order 18 Rule 3 CPC. Sh.P.C.Sharma has also drawn my attention to the judgment of a Division Bench of the Punjab & Haryana High Court in Jaswant Kaur & Anr. Vs. 5 Devinder Singh & Ors, AIR 1983 Punjab & Haryaa 210. Para 12 and 13 relied upon by the learned counsel reads as follows:- “12. To conclude, I would hold on the language of Order 18 Rule 3, CPC on principle and on the weight of precedent, that the last stage for exercising the option to reserve the right of rebuttal can well be before the other party begins its evidence. 13. Before parting with this judgment, the modalities of reserving the right of rebuttal also calls for some comment. It appears to me that herein also an overly strict view is not to be taken. If it is possible to necessarily imply from the mode of reservation that the right of rebuttal has been retained then it should not be negatived, merely on the ground that it has not been so done in express terms. Cases where the party or its counsel makes the statement that he closes his evidence in the affirmative only, would inevitably imply that rebuttal evidence may well be led and consequently such right has been reserved.” I do not understand how these observations in any way help the respondents-plaintiffs in the present case. All that the Punjab & Haryana High Court said in this case is that an over-technical view should not be taken with regard to the closing of the evidence and even if the party beginning does not specifically reserve his right to lead rebuttal evidence this can be 6 implied by the mere statement that the evidence is being closed in the affirmative. The authority, in question, does not in any manner consider the question as to when a party has the right to lead rebuttal evidence and what is the extent of rebuttal evidence which can be led and whether rebuttal evidence can be led only on the issues, onus of proving of which is on the other side. The authority relied upon by the learned Trial Court has been overruled by the Punjab & High Court itself in Surjit Singh & ors. Vs. Jagtar Singh & ors. AIR 2007 Punjab and Haryana High Court (1). A Division Bench of the Punjab & Haryana High Court not only considered Jaswant Kaur’s case supra but also considered the judgment in M/s.Punjab Steel Corporation’s case. As far as Jaswant Kaur’s case is concerned, the Division Bench held that the learned Single Judge who decided M/s.Punjab Steel Corporation case had misread the judgment of Jaswant Kaur’s case and his conclusion that in Jaswant Kaur’s case a proposition of law had been laid that parties are entitled to lead rebuttal evidence on all issues where onus to prove 7 some issues is on the defendant was wrong. The judgment in M/s.Punjab Steel Corporation’s case was specifically overruled. The Division Bench held as follows:- “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 (AIR 1983 P&H 210) (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 8 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 (AIR 2001 P&H 331) (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. (AIR 1982 P&H 432) (supra).” I am in respectful agreement with the law laid down by the Punjab & Haryana High Court. In fact, this is the view which this Court had taken even in other matters. 9 In Jagdish Chand Mehta Vs. Sandeep & ors. CMPMO 139/2008 decided on 21.9.2010, this Court held as follows:- “It is well settled law that the party, on whom the onus to prove an issue is placed, has to prove this issue. It has to first lead evidence to prove the issue ad the other party contesting the said issue leads evidence to discredit or disprove the evidence of the party on whom the onus to prove the issue lies. Thereafter, the party on whom the onus was initially laid to prove the issue cannot be permitted to lead rebuttal evidence as a matter of right. Rebuttal evidence by the plaintiff can only be led in those cases where onus to prove some issues based on fact lies upon the defendant.” It would be pertinent to deal with the phrase relied upon by the respondent that the “party beginning will be entitled to reply generally on the whole case.” In case Order 18, Rule 3 of the CPC is read as a whole, it is obvious that when several issues are framed normally it would be the plaintiff who would led evidence if onus to prove certain factual issues has been placed on the plaintiff. Therefore, instead of the word ‘party beginning’ I am reading in this sub rule the word ‘plaintiff’ and instead of the word ‘other party’, the word ‘defendant’. Therefore, where there are several issues, onus to prove some of 10 which is on the plaintiffs and of some on the defendants and the plaintiff leads evidence only on the issues, the onus to prove which is on him, then he can reserve his right to lead rebuttal evidence on the issues, onus to prove which is on the defendant. Thereafter, the defendant would be required to lead evidence on all issues and then the plaintiff would have the right to lead evidence in rebuttal only on those issues, the onus to prove which was on the defendant. This is obvious from the words used in this rule that in the latter case the party beginning may produce evidence on those issues after the other party has produced its own evidence. It is only when the defendant is again given a right to lead evidence either by way of additional evidence or otherwise, i.e., in case of a counter claim to lead further evidence that the plaintiff would get a right to lead rebuttal evidence again and it is only in this eventuality that the plaintiff can reply generally on the whole case. In view of the above discussion, the order of learned trial Court is patently erroneous and is accordingly set aside. The plaintiffs cannot in any circumstances be permitted to lead rebuttal 11 evidence on issues No.1 to 3. Issue No.4 has not been pressed and evidence cannot be led on this issue. As far as issue Nos.5 and 6 are concerned, they appear to be formal issues. However I am purposely not expressing any opinion on this question in view of the order which I intend to pass. The learned trial Court shall now reconsider the application only in respect of issues Nos.5 and 6 and in case he finds that the defendants had led evidence on these two issues, he may permit the plaintiffs to lead rebuttal evidence confined to these two issues alone and not on any other issues. The petition is disposed of in the aforesaid terms. No order as to costs. March 10, 2011 ( Deepak Gupta ) (m) Judge