Civil Revision No.6579 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.6579 of 2011(O&M) Date of Decision: October 31, 2011 Sat Parkash Goyal .....Petitioner v. Arvind Kumar Dumra and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Rajat Malhotra, Advocate for the petitioner. Mr.Aman Bahri, Advocate for the caveator-respondents. ..... RAM CHAND GUPTA, J.(Oral) Petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India for setting aside impugned order dated 29.9.2011 passed by the Court of Civil Judge, Senior Division, Ludhiana, vide which petitioner-plaintiff has not been permitted to lead evidence in rebuttal and the affidavits tendered by petitioner-plaintiff, i.e., one of himself and another of Shri N.K.Jain, handwriting expert, were ordered to be taken off the record. 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. It has been contended by learned counsel for the petitioner that learned trial court in the impugned order has wrongly mentioned that handwriting expert was already examined by the petitioner. It is further contended that petitioner is having right to adduce evidence in rebuttal on Civil Revision No.6579 of 2011(O&M) -2- issue no.4, onus of which was upon respondent-defendant. Facts relevant for the decision of present revision petition are that present petitioner-plaintiff filed a suit for specific performance of an agreement to sell dated 21.9.1987. The agreement was in favour of father of present petitioner, who had died during pendency of the suit. The suit was filed on 26.5.1988. Earlier an application was filed by the present petitioner seeking permission to take photographs of the signatures on the alleged agreement in order to get the same examined by an Handwriting Expert. The said application was allowed on 13.8.1992 and, however, the present petitioner did not care to get the signatures verified from any expert. He moved another application on 31.5.1993, which was also allowed and his Expert, namely, Mr.P.S.Ahuja was permitted to take photographs. The expert took photographs on 4.6.1993 and, however, he did not submit any report. Present petitioner filed another application on 9.6.1995 requesting that Mr.N.K.Jain, Handwriting Expert, be permitted to take photographs as an Expert and then to examine him as a witness. He did not take any action even on the same for a period of four years, when he moved another application on 21.9.1999, which was dismissed by learned trial Court on 11.3.2000 on the ground that the earlier applications had been allowed and, however, petitioner did not take any steps to examine the expert. The said order was challenged by the present petitioner by filing C.R.No.2274 of 2000, which was dismissed by this Court on 4.7.2003. Not satisfied with the same, petitioner filed review against the said order, which was dismissed on 19.12.2003. He challenged both the orders by filing Special Leave Petition before Hon'ble Apex Court, which was also dismissed. However, liberty was given to petitioner to raise any Civil Revision No.6579 of 2011(O&M) -3- plea in an appeal in the event of an occasion arising for the said purpose. Evidence of present petitioner was closed by order of the Court dated 4.12.2003. While the case was at the stage of evidence of respondent and handwriting expert was being examined by respondent-defendant, another application was moved by present petitioner by concealing the facts of dismissal of earlier applications on the point and has sought an order allowing him to take photographs of document in the presence of his counsel, without issuing any notice to respondent-defendant. The said order was challenged by respondent-defendant before this Court by filing C.R.No.3088 of 2007, which was allowed by this Court vide order dated 21.1.2008, by observing as under:- “ Despite the facts as noticed above, the counsel for the respondent would still justify the action of the respondent and the order passed by the court. He would not listen and would ignore the facts as pointed out to him that permission granted by the court to examine the same Expert in the background where it was declined earlier obviously cannot be justified. He took time and has placed on record certain documents as Annexures R-1 to R-7. Basically the justification given by the counsel for the respondent is that he has been permitted to take photographs of the re- constructed document and as such the earlier orders declining this permission would lose their relevance to test the validity of the orders now made. The counsel further seems to be contending that the tampering if any had been done by an Expert brought by the petitioner, which fact Civil Revision No.6579 of 2011(O&M) -4- needs to be established. He would refer to the affidavit given by counsel Avinash Chander Gupta, which is on record as Annexure R-4. In this affidavit, the counsel had tried to convey that the file was under inspection by Vikram Raj Singh Chauhan on 17.3.2005 and when the counsel had reached there, said Sh.Chauhan pointed out that the signatures of Hari Dutt Dumra on the original copy of the agreement were lying erased. This line, as adopted by the counsel representing the respondent, would not be of any avail to him. Once the permission sought by him to take photographs of original document was declined, there cannot be any justification for granting him permission to take photographs of the re-constructed document. No doubt, the court had, through order Annexure R-7, granted permission to re-construct the document, but that would not change any factual position in regard to the aspect of denial to the respondent for taking photographs of the document. The accusing finger for tampering of documents is tilting more towards the respondent and he is accused of an offence in this regard. The impugned order, as such, cannot be held justified under any circumstances whatsoever. The present revision petition is accordingly allowed. A direction is hereby issued that the report dated 31.3.2007 given by N.K.Jain Handwriting Expert and the photographs as well as the negatives mark Z1 to Z105 are not to be taken into Civil Revision No.6579 of 2011(O&M) -5- consideration for any purpose and would stand removed from the record of the trial court with the further direction that respondent would not be permitted to use or rely upon these documents or the report for any purpose whatsoever. The conduct of the respondent cannot be appreciated. He has clearly tried to mislead the court in passing of the impugned order. He has misused the process of the Court and deserves to be dealt with. He must atleast pay the cost of this petition. The revision petition is accordingly allowed with cost, which is assessed at Rs.5000/-. The respondent shall deposit this cost with the trial court, which the petitioner would be entitled to claim.” Present petitioner filed appeal before Hon'ble Apex Court against this order dated 21.1.2008, which was dismissed by Hon'ble Apex Court by observing as under:- “ We are not inclined to interfere in the matter. However, the observation about the tampering of the document being attributable to the respondent is the subject matter of SLP(Crl.) No.7262/2007. That observation shall not be presently of any consequence and ultimately shall be subject to the adjudication in the aforesaid SLP. The special leave petition is dismissed accordingly.” After conclusion of evidence of respondent-defendant, petitioner-plaintiff again filed affidavit of the said witness, namely, N.K.Jain, Handwriting Expert at rebuttal stage without disclosing of the previous facts and when the fact was brought to the notice of the Court, Civil Revision No.6579 of 2011(O&M) -6- impugned order was passed vide which affidavit of N.K.Jain, Handwriting Expert as well as affidavit of petitioner-plaintiff were ordered to be taken off the record. It may be mentioned here that petitioner-plaintiff has already led evidence in affirmative in order to discharge the onus to prove the main issue, i.e., issue No.1. He has filed the present suit on the basis of agreement to sell dated 21.9.1987 and it was for the petitioner-plaintiff to prove due execution of the said agreement by respondent-defendant. He has already led evidence in affirmative to prove the said issue. Issue No.4 is nothing but rebuttal to main issue no.1. Hence, in my view, evidence has already been adduced by petitioner-plaintiff on both the issues. 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.” The matter as to whether a party is having right to lead evidence in rebuttal has been dealt with 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, relevant paragraph of which reads as under:- “15. In our opinion, Order 18 Rule 3 of the CPC would not Civil Revision No.6579 of 2011(O&M) -7- 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 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 Civil Revision No.6579 of 2011(O&M) -8- 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 this case, petitioner-plaintiff has not reserved his right to adduce evidence in rebuttal on issue No.4 while closing evidence in affirmative. Hence, as petitioner has already led evidence in affirmative on all the issues and has not reserved right to adduce evidence in rebuttal on any issue, it cannot be said that he is having any right to lead evidence in rebuttal. 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 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:- Civil Revision No.6579 of 2011(O&M) -9- “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. 31.10.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.