Civil Revision No.1787 of 2011 1 In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 22.09.2011 Suresh Kumar and others ... Petitioners Versus Joginder Singh ... Respondent CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.CB Goel, Advocate,for the petitioners. Mr.Surinder Dhull, Advocate, for the respondent. PERMOD KOHLI, J. This revision is directed against the order dated 10.02.2011 passed by the learned Additional Civil Judge (Senior Division), Narwana, whereby an oral request of the plaintiff for rebuttal evidence has been allowed. The plaintiff-respondent herein filed a suit for recovery of Rs.38,00,000/- on the basis of an agreement, in the Court of learned Additional Civil Judge (Senior Division), Narwana. The defendants- petitioners herein, filed written statement of defence and trial of the suit commenced. The plaintiff was allowed to lead evidence which he did. On conclusion of evidence of the plaintiff, the defendants were allowed to lead their evidence. Defendants also concluded their evidence. It was at this Civil Revision No.1787 of 2011 2 stage that the plaintiff made an oral request to the learned trial Court on 04.02.2011 for leave to produce the evidence of expert in rebuttal to prove the signatures of defendant No.1, Aman Kumar (now deceased) on the agreement to sell dated 21.02.2006 (Annexure P-2). This prayer was resisted by the defendants on the grounds that the defendants denied the execution of the agreement in their written statement and, thus, it was obligatory upon the plaintiff to have proved the agreement by leading affirmative evidence which, inter alia, includes evidence of expert. It was further pleaded that the parties have already led evidence and it will have no occasion to rebut the evidence of the plaintiff if permission is granted at this belated stage. The learned trial Court, however, vide the impugned order allowed the oral request of the plaintiff to grant relief to lead evidence in rebuttal by observing that the plaintiff shall compensate the opposite side by costs of Rs.500/-. Thus, by awarding a cost of Rs.500/- to the defendants, plaintiff-respondent herein, has been allowed to lead evidence in rebuttal. I have heard the learned counsel for the parties at length. During the course of hearing, learned counsel for the plaintiff produced a copy of the order dated 24.05.2008, whereby the trial Court framed the following issues in the case:- “1. Whether there was an agreement dated 30.12.2005 for valuable consideration between the parties? OPP 2. Whether plaintiff has been ready and willing to perform his part of contract? OPP 3. Whether plaintiff is entitled to the decree of Civil Revision No.1787 of 2011 3 possession by way of specific performance of contract? OPP 4. Whether present suit is not maintainable? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Relief.” Right to lead rebuttal evidence is envisaged under Order 18 Rule 3 of the Code of Civil Procedure 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.” From the perusal of the above provision, it appears that where there are several issues and burden to prove the issues lies on the other Civil Revision No.1787 of 2011 4 party, the party beginning has the option to produce his evidence on those issues, or reserve it by way of answer to the evidence produced by the other party. In such an eventuality, the party beginning may produce evidence on those issues after other party has produced all his evidence. In other words, the right of rebuttal i.e. in answer to the evidence of other side is available to the party beginning where the onus of some issues is on other party and the other party has led evidence on such issues. In the present case, from the perusal of the issues framed in the case, it appears that the burden to prove the validity of the agreement and whether the agreement was for valuable consideration between the parties, was upon the plaintiff. A specific issue in this regard has been framed. It was the obligation of the plaintiff to prove the due execution of the agreement which, inter alia, includes consideration for same. The plaintiff led affirmative evidence but did not produce the expert witness to prove the signatures of defendant No.1, Aman Kumar (now deceased) who had denied the same in the written statement. Both he parties have relied upon judgments rendered by this Court in support of their respective contentions. Learned counsel for the respondent has referred to a judgment of Single Bench of this Court in the case of Ranjit Singh Vs. Mehfil Restaurant, AIR 2008, Punjab and Haryana, 104. In this case, a suit for recovery was filed by the plaintiff. After framing of issues, the plaintiff led its evidence in affirmative. The defendant in his evidence produced certain documents in the form of receipts claiming repayment of loan to the plaintiff. The plaintiff, accordingly, requested for evidence in rebuttal to rebut the evidence produced by the defendant during the course of defence Civil Revision No.1787 of 2011 5 evidence. It was, inter alia, pleaded by the defendant that since there is no issue burden whereof is upon the defendant, the plaintiff has no right to lead evidence in rebuttal. This Court, however, did not agree with the contention of the defendant and allowed the plaintiff to lead evidence in rebuttal taking into consideration the fact that the defendant had produced documents in rebuttal to the plaintiff's evidence and, thus, the plaintiff is to be provided an opportunity to rebut the documents produced by the defendant in their evidence notwithstanding the fact that the onus of any such issue is not on the defendant. To the contrary, the defendant-petitioner has relied upon a Division Bench judgment of this Court in the case of Surjit Singh and others Vs. Jagtar Singh & others, 2007 (1) RCR (Civil), 537. This case, before the Hon'ble Division Bench, came to be listed on the reference made by the learned Single Judge of this Court in view of divergent opinion in respect to the right of the party to lead evidence in rebuttal on the touch stone of Order 18 Rule 3 of the Code of Civil Procedure. The factual aspect of the case before the Division Bench was that the suit was filed challenging the sale of the property of the estate of Kabal Singh, who died in the year 1997. The plaintiff claimed the right on the basis of the Will allegedly executed by the deceased in favour of his three sons i.e. plaintiffs to the exclusion of the daughters. The sale was made by the daughter. On the pleadings of the parties, the learned trial Court framed the issues relating to the Will in the following manner:- “Whether Kabal Singh executed a valid Will dated 6.4.1997 in favour of the plaintiff? OPP Plaintiffs closed their evidence after examining few witnesses Civil Revision No.1787 of 2011 6 and thereafter the defendants closed their evidence. The case was then adjourned for rebuttal and arguments. It was at this stage that the plaintiffs sought examination of the Finger Print and Handwriting Expert to prove the signatures of Kabal Singh on the Will. This request was resisted by the defendants on the ground that the plaintiffs had no right of rebuttal. It was pleaded that it was obligatory upon the plaintiff to have led evidence in affirmative to prove the Will that having not been done, the plaintiffs have no right to rebuttal in terms of Order 18 Rule 3 of the Code of Civil Procedure. Hon'ble Division Bench of this Court while considering various cases earlier decided by this Court, taking divergent view, finally held 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 Civil Revision No.1787 of 2011 7 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 Civil Revision No.1787 of 2011 8 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 view expressed by the Hon'ble Division Bench of this Court is the only logical and realistic view in respect of interpretation of Order 18 Rule 3 of the Code of Civil Procedure. Thus, the right to rebuttal cannot be exercised unless the onus of an issue is upon other party and the party beginning reserved the right before the evidence of other party is commenced. The judgment relied upon by the learned counsel for the respondent has been rendered under peculiar facts and circumstances of that case where the defendant produced documents while leading his evidence and in rebuttal to the evidence of the plaintiff. The plaintiff, thus, acquired a right to lead evidence in rebuttal to the documents produced by the defendants. Otherwise, right to rebuttal envisaged under Order 18 Rule 3 of the Code of Civil Procedure, can only be exercised in the manner ruled by the Hon'ble Division Bench in Surjit Singh's case (supra). In view of the above, present revision petition succeeds and the same is allowed. The impugned order is set aside. No costs. Civil Revision No.1787 of 2011 9 The parties, through their counsel are directed to appear before the trial Court on 17.10.2011 for further proceedings. 22.09.2011 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES