Civil Revision No.3506 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.3506 of 2011(O&M) Date of Decision: May 26, 2011 Krishan .....Petitioner v. Surta alias Surat and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Sanjay Vij, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.13868-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.3506 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 23.4.2011, passed by learned Civil Judge, Junior Division, Gurgaon, Annexure P1, vide which application filed by petitioner-plaintiff for summoning witnesses for proving sale deed, allegedly executed by deceased Tota, with intention to get the thumb impression of deceased Tota compared with his alleged thumb impressions on the documents relied upon by petitioner-plaintiff in his case was dismissed. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are Civil Revision No.3506 of 2011(O&M) -2- that a suit for declaration was filed by petitioner-plaintiff against respondents-defendants that he and pro forma respondents-defendants have become owners in possession of the land in dispute on the brief allegations that the land in dispute was mortgaged with possession by Tota, father of defendant no.1, in favour of Bharat Singh, who was ancestor of plaintiffs and pro forma respondents-defendants and that a receipt for `2,000/- dated 11.8.1967 was executed by mortgagor in favour of mortgagee and as the said mortgage had not been redeemed, hence, petitioner-plaintiff and pro forma respondents-defendants have become owners in possession of the same, after expiry of period of redemption. The suit has been contested by respondents-defendants on the plea that no such receipt for creating mortgage was ever executed by father of defendant no.1 in favour of predecessor-in-interest of plaintiffs and that no such mortgage was ever created. From the pleadings of the parties, following issues were framed:- “1. Whether the plaintiff and proforma defendants No.2 to 6 are owners in possession in land bearing Rect.No.19, Killa No.12/2 (4-10), situated in revenue estate of Fatehpur, Tehsil and District Gurgaon, Rect.No.20, Killa No.13/2 (3-11) situated in the revenue estate of Adampur, Tehsil and District Gurgaon and land bearing Rect.No.19, Killa Nos.8(1-18), 9/1 (3-10) and 26(0-6) situated in the revenue estate of Fatehpur Tehsil and District Gurgaon and land bearing Rect. No.20, Killa No.8/3 (0-15) and 13/1 (2-5) situated in the revenue estate of Adampur, Tehsil and District Gurgaon? OPP Civil Revision No.3506 of 2011(O&M) -3- 2. Whether Sh.Tota had mortgaged with possession of suit land as mentioned in issue no.1 with Bharat Singh for a sum of Rs.2,000/- on 11.8.1967 and had delivered the possession of suit land to him after receiving mortgage amount of Rs.2000/-? OPP 3. Whether neither Sh.Tota during his life time and nor any of his heirs after his death ever tried to get the suit land redeemed? OPP 4. Whether the limitation for getting the suit land redeemed had expired? OPP. 5. Whether after the death of Sh.Bharat plaintiff and proforma defendants no.2 to 6 are came in possession of the suit land and also inherited all his properties including the suit land? OPP 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the plaintiffs are estopped from filing the present suit? OPD 8. Whether the suit is bad for non-joinder of necessary parties? OPD 9. Whether the plaintiffs have no cause of action to file the present suit? OPD 10. Whether the civil suit has no jurisdiction to try and entertain the present suit? OPD 11. Whether the suit is false, frivolous and vexatious? OPD 12. Whether the suit is liable to be dismissed under Order 2 Civil Revision No.3506 of 2011(O&M) -4- Rule 2 CPC? OPD 13. Whether the plaintiffs have not come to the court with clean hands? OPD 14. Relief.” Petitioner-plaintiff already adduced evidence in affirmative. Evidence of defendants was also closed. Case was fixed for rebuttal and arguments, when the present application was filed, which was declined by learned trial Court, mainly on the ground that evidence sought to be adduced is not of rebuttal and that rather the same should have been adduced while plaintiff was leading evidence in affirmative. Perusal of the aforementioned issues shows that onus of main issues no.1 and 2 was on plaintiff. It was for the plaintiff to prove that Tota had mortgaged the land with possession to Bharat Singh for a sum of `2000/- on 11.8.1967. In order to prove the said fact, evidence was already adduced by petitioner-plaintiff in affirmative. Evidence now sought to be adduced in rebuttal cannot be said to be on any issue, onus of which was placed upon respondents-defendants. Hence, learned trial Court has rightly come to the conclusion that petitioner-plaintiff has no right to adduce evidence in rebuttal to prove issues, onus of which was upon him. It is pertinent to reproduce Order XVIII Rule 3 of 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 Civil Revision No.3506 of 2011(O&M) -5- 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.” The abovesaid provision has been interpreted by a Division Bench of this Court in Surjit Singh and others v. Jagtar Singh and other, 2007(1) RCR (Civil) 537: 2007(2) CivCC 115, on which reliance has also been placed by learned counsel for the petitioner-plaintiff, 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,” 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 Civil Revision No.3506 of 2011(O&M) -6- 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).” In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. 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 Civil Revision No.3506 of 2011(O&M) -7- 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. 26.5.2011 (Ram Chand Gupta) meenu Judge