Civil Revision No.5155 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.5155 of 2011(O&M) Date of Decision: September 12, 2011 Gurdev Singh and another .....Petitioners v. Randhir Singh and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Vijay Sharma, Advocate for the petitioners. ..... RAM CHAND GUPTA, J. C.M.No.21872-CII of 2011 Requests for placing on record statements of counsel for the petitioners-plaintiffs dated 8.2.2010 and 22.2.2010. The same are taken on record subject to all just exceptions. Application stands disposed of accordingly. Civil Revision No.5155 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for quashing of order dated 9.5.2011, Annexure P6, passed by learned Additional Civil Judge (Senior Division), Samana, vide which request of petitioners-plaintiffs to lead evidence in rebuttal was declined. I have heard learned counsel for the petitioners and have gone through the whole record carefully including the impugned order passed by learned trial Court. Briefly stated, petitioners-plaintiffs filed this suit for possession by way of specific performance of agreement to sell dated 14.7.2005 Civil Revision No.5155 of 2011(O&M) -2- allegedly executed by both the respondents-defendants in their favour in respect of land measuring 51 kanals 14 marlas, fully described in the heading of the plaint, and directing the respondents-defendants to get the sale deed executed and registered in favour of the petitioners-plaintiffs on receipt of balance sale consideration with further relief of permanent injunction restraining respondents-defendants from alienating the suit land, in any manner. On notice being issued, respondents-defendants denied the execution of the alleged agreement to sell dated 14.7.2005 in favour of the petitioners-plaintiffs. Plea has been taken that agreement, if any, is a result of fraud and forgery on the part of the petitioners-plaintiffs in connivance with the alleged witnesses of the agreement. They also denied having received any earnest money and denied having thumb marked the alleged agreement. From the pleadings of the parties, the following issues were framed by learned trial Court:- “i) Whether defendants executed an agreement for the sale of the suit land in favour of the plaintiffs on 14.7.2005 for consideration of Rs.6,95,000/- per acre after receiving a sum of Rs.8 lacs as an earnest money ? OPP ii) Whether plaintiffs have been and are still ready and willing to perform their part of contract ? OPP iii) Whether plaintiffs are entitled to get the relief of possession by way of specific performance of agreement to sell dated 14.7.2005? OPP iv) Whether the plaintiffs are entitled to permanent Civil Revision No.5155 of 2011(O&M) -3- injunction, as prayed for? OPP v) Whether the alleged agreement to sell is forged and fabricated documents and without consideration? OPD vi) Whether the suit of the plaintiffs is not maintainable in the present form? OPD vii) Whether the plaintiffs have no cause of action to file the present suit? OPD viii) Relief.” Petitioners-plaintiffs adduced evidence in affirmative and closed the same. Respondents-defendants had also closed their evidence, when the present application was filed by petitioners-plaintiffs for permission to lead evidence in rebuttal in the form of handwriting and finger print expert. However, the same was declined by learned trial Court by observing that onus to prove valid execution of agreement to sell by the defendants was on the plaintiffs and the plaintiffs already adduced evidence in affirmative in order to prove the said issue, whereas no evidence was led by respondents-defendants by examining any handwriting and finger print expert to rebut the evidence of the plaintiffs on the point and hence, it is held that petitioners-plaintiffs are having no right to examine handwriting and finger print expert in rebuttal evidence. It has been contended by learned counsel for the petitioners- plaintiffs that petitioners-plaintiffs have reserved their right to lead evidence in rebuttal on issues, onus of which was on the defendants and as onus of issue No.5 was on the defendants and hence, petitioners-plaintiffs are having right to examine handwriting and finger print expert in rebuttal evidence. He has also placed reliance upon Surjit Singh and others v. Civil Revision No.5155 of 2011(O&M) -4- Jagtar Singh and other 2007(1) RCR (Civil) 537, Ranjit Singh v. Mehfil Restaurant 2008(1) RCR (Civil) 768 and Kewal Singh v. Jagjit Singh 2007(4) RCR (Civil) 631. There is no dispute regarding legal proposition held by Division Bench of this Court in Surjit Singh and others' case (supra) that a party can be permitted to lead evidence on the issues for which burden of proof was on the other party and on which no evidence was adduced by plaintiff in affirmative. The relevant paragraph of the judgment 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 Civil Revision No.5155 of 2011(O&M) -5- 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).” However, in this case, the onus to prove the main issue as to whether defendants executed an agreement for the sale of suit land in favour of plaintiffs on 14.7.2005 for consideration of `6,95,000/- per acre after receiving a sum of `8 lacs as earnest money, i.e., issue No.1 was on petitioners-plaintiffs and petitioners-plaintiffs had already adduced evidence on the said issue. Issue No.5 is connected with issue No.1 only. Hence, it cannot be said that the petitioners-plaintiffs had not adduced evidence on Civil Revision No.5155 of 2011(O&M) -6- issue No.5 and that the evidence has been adduced on issue No.1 only. When evidence has already been adduced on issues No.1 and 5, merely on the ground that counsel for the petitioners-plaintiffs stated at the time of closing evidence in affirmative that he had reserved right to adduce evidence in rebuttal, it cannot be said that petitioners-plaintiffs are having any right to adduce evidence in rebuttal on the issues, on which he has already led evidence in affirmative. Moreover, respondents-defendants have not examined any Handwriting and finger print expert to rebut the evidence adduced by petitioners-plaintiffs in affirmative and hence, it has been rightly observed by learned trial Court that petitioners-plaintiffs have no right to examine handwriting and finger print expert in rebuttal evidence in order to prove due execution of agreement to sell. Hence, none of the authorities on which reliance has been placed upon by learned counsel for the petitioners- plaintiffs are applicable to the facts of this case. 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:- “Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or Civil Revision No.5155 of 2011(O&M) -7- 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. 12.9.2011 (Ram Chand Gupta) meenu Judge