Civil Revision No.7098 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.7098 of 2010(O&M) Date of Decision: October 12, 2011 Nirmal Singh .....Petitioner v. Shanti Devi and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Vikas Sagar, Advocate for the petitioner. Mr.Siddarth Gupta, Advocate for respondents no.1 to 5. ..... RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside judgment dated 17.9.2010, Annexure P1, passed by learned Civil Judge, Junior Division, Ludhiana, vide which application filed by respondents-plaintiffs for leading evidence in rebuttal was allowed. 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 respondents-plaintiffs filed this suit for a decree for declaration that they are joint owners of the property in dispute with consequential relief of permanent injunction restraining present petitioner-defendant no.1 from raising any construction over the same and from alienating the same. On notice being issued, present petitioner-defendant had propounded a Will Civil Revision No.7098 of 2010(O&M) -2- allegedly executed by Prabhdayal deceased in his favour. The dispute is regarding inheritance of property left by Prabhdayal. Following additional issues were framed by learned trial Court, onus of which was upon present petitioner-defendant. “1. Whether Prabhdayal deceased had executed valid Will dated 8.9.1993 in favour of defendant no.1? OPD 2. Whether the property in suit have been partitioned in April 1991 by oral family partition. If so, to what effect? OPD” Evidence was adduced by respondents-plaintiffs. Evidence was also adduced by present petitioner-defendant when the present application was filed by respondents-plaintiffs to adduce evidence in rebuttal to the evidence of petitioner-defendant on additional issues no.1 and 2, which was allowed by learned trial Court. It has been contended by learned counsel for the petitioner that respondents-plaintiffs already led evidence on additional issues while adducing evidence and hence, they are having no right to adduce evidence in rebuttal. On the point he has placed reliance upon Chakkar Pani v. Onkar Nath 1996(2) Civil Court Cases 0715 and a judgment of this Court rendered in Mohinder Singh v. Balbir Singh and others 2011(2) Civil Court Cases 766 (P&H). However, there is no merit in the contention of learned counsel for the petitioner. Merely on the ground that one of the respondents- plaintiffs had stated in his cross-examination that no such Will was executed by Prabhdayal deceased, it cannot be said that they had already led evidence on the aforementioned additional issues to disprove the Will Civil Revision No.7098 of 2010(O&M) -3- propounded by present petitioner-defendant no.1. No other evidence was adduced by respondents-plaintiffs to disprove the Will. Evidence was also closed in affirmative only. 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, which was relied upon by this Court while passing order in Mohinder Singh's case (supra), relevant paragraph of which 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 Civil Revision No.7098 of 2010(O&M) -4- 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 the present case, onus to prove valid execution of Will by deceased Prabhdayal was upon the petitioner and he already adduced evidence to discharge the said onus. Hence, respondents-plaintiffs are having right to adduce evidence in rebuttal to the evidence adduced by petitioner-defendant to disprove the said issues. They want to examine an Advocate, namely, Shri Major Singh Mangat, through whom reply to the notice was given by petitioner-defendant and, however, when the said reply was put to him in the cross-examination, he denied the same. They also Civil Revision No.7098 of 2010(O&M) -5- want to examine Gurcharan Singh Namberdar, who had identified Ujjagar Singh Namberdar, who had given an affidavit regarding the Will and they also want to examine District Revenue Officer, Barnala, who attested the said affidavit to disprove the alleged Will propounded by petitioner- defendant. They also want to examine a witness Bhagwant Singh, who is a common relative of the parties in order to prove the fact that Prabhdayal was not in sound disposing of mind at the time of alleged execution of Will. It has been held by Division Bench of this Court in Surjit Singh's case (supra) that if a statement is made by Advocate for the plaintiff that plaintiff closes its evidence in the affirmative only, the same would be read to mean that the plaintiff had reserved its rights to lead evidence in rebuttal. Hence, in this case as well, merely, on the ground that evidence was closed in affirmative without reserving right to lead evidence in rebuttal, it cannot be said that the right was not reserved. Rather the right was impliedly reserved by counsel for the respondents-plaintiffs while closing evidence in affirmative only. 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 Civil Revision No.7098 of 2010(O&M) -6- 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. 12.10.2011 (Ram Chand Gupta) meenu Judge