Civil Revision No.2885 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2885 of 2011(O&M) Date of Decision: May 4, 2011 Rachhpal Singh .....Petitioner v. M/s Roop Rai Agro Industries Patiala Road Nabha and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.HPS Ghuman, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.11478-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.2885 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for quashing of order dated 4.3.2011, passed by learned Civil Judge, Junior Division, Samana, vide which application filed by petitioner-plaintiff to lead evidence in rebuttal has been declined. 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 that a suit for recovery of `1,50,000/- as damages was filed by petitioner- plaintiff by taking the plea that a Harvesting Combine was purchased by him from defendant and, however, later on it was found that the same was fitted with disposal engine and not with a new engine, when he got the same inspected from the mechanic. Suit was contested by respondents-defendants by taking the plea that agreement between the parties was for supplying one season used combine, which was manufactured with disposal engine bearing Civil Revision No.2885 of 2011(O&M) -2- No.ALEN110732. Plea has also been taken that there was some outstanding amount against price of the same. From the pleadings of the partied, following issues were framed by learned trial Court:- “1. Whether the plaintiff is entitled to recover the suit amount? OPP 2. Whether the plaintiff is entitled to recover interest on suit amount, if so, at what rate? 3. Whether the suit of the plaintiff is not maintainable in the present form? OPD 4. Whether the suit of the plaintiff is false and frivolous, if so its effect? OPD 5. Whether the defendant is entitled to recover the suit amount as mentioned in the counter claim? OPP 6. Whether the defendant is entitled to recover interest on the suit amount as mentioned in the counter claim, if so, at what rate? OPP 7. Relief.” Parties adduced evidence in support of their respective contentions. However, when the case was at the stage of rebuttal and arguments, the present application for examining the mechanic in rebuttal has been filed by petitioner-plaintiff, which was declined by learned trial Court vide impugned order. It is pertinent to 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.” Civil Revision No.2885 of 2011(O&M) -3- 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,” 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 Civil Revision No.2885 of 2011(O&M) -4- 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 which was on him and the same was to be seen on the facts and circumstances of each case. Hence, under Order XVIII Rule 3 of the Code, evidence can be led in rebuttal only on the issue onus of which is on the other party and if the party has not adduced evidence on the said issue in affirmative. In the present case, onus to prove the main issue was on petitioner-plaintiff. Evidence in affirmative was closed by him. It was his case from the very beginning that the Harvesting Combine purchased by him was found to be fitted with disposal engine and not with new engine when he got the same inspected from a mechanic and, hence he should have examined the mechanic in his affirmative evidence. Civil Revision No.2885 of 2011(O&M) -5- Moreover, in the written statement filed by respondents- defendants, plea has been taken that Harvesting Combine supplied to petitioner-plaintiff was fitted with disposal engine and not with new one as per agreement. Hence, 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 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 4.5.2011 (Ram Chand Gupta) meenu Judge