Civil Revision No.3561 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.3561 of 2011(O&M) Date of Decision: May 27, 2011 Tejinder Singh .....Petitioner v. Chhinda Singh and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Ms.Deepali Puri, Advocate for the petitioner. ...... RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 6.5.2011, passed by learned Civil Judge, Senior Division, Tarn Taran, vide which affidavits filed by petitioner-plaintiff regarding examination-in-chief of PW5, PW6 and PW7 in rebuttal evidence 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. Facts relevant for the decision of present revision petition are that a suit for possession by way of specific performance in respect of agreement to sell dated 10.4.2003, allegedly executed between the plaintiff and defendants regarding the land in dispute was filed by the petitioner- plaintiff on the plea that defendants agreed to sell the same for consideration of `7,80,000/- and they already received `3,00,000/- as earnest money. Suit was contested by respondents-defendants by taking the plea that no such agreement was executed by them and rather as they are Civil Revision No.3561 of 2011(O&M) -2- illiterate persons and taking benefit of their illiteracy, petitioner-plaintiff got their thumb impressions on some blank papers on the plea that they would get general power of attorney for sanctioning mutation for the land in dispute in their favour and, however, it seems that later on the said blank papers containing thumb impressions of respondents no.1 to 4 was got converted into an agreement and in fact no such agreement was executed by them as they could not sell the land for a period of at least 15 years, after becoming owners of the same, as the land was allotted to father of respondents no.1 to 3 and husband of respondent no.4, out of surplus pool. From the pleadings of the parties, following issues were framed:- “1. Whether the defendants entered an agreement to sell on 10.4.2003 of the suit land in favour of the plaintiff on receipt of `3,00,000/- as earnest money? OPP 2. Whether the plaintiff is ready and willing to perform the part of his agreement from the date of agreement? OPP 3. If issues no.1 and 2 are proved, whether the plaintiff is entitled to decree for possession by way of specific performance at the payment of balance sale consideration? OPP 4. Whether in the alternative, the plaintiff is entitled to recover of `6,00,000/- i.e., refund of `3,00,000/- as earnest money and `3,00,000/- damages? OPP 5. Whether the plaintiff is entitled to decree for permanent injunction as prayed for ? OPP Civil Revision No.3561 of 2011(O&M) -3- 6. Whether the plaintiff has no locus standi to file the present suit? OPD 7. Whether the agreement to sell in dispute is result of fraud and misrepresentation as alleged? OPD 8. Relief.” Evidence was adduced by petitioner-plaintiff. Evidence was also adduced by respondents-defendants. Case was fixed for rebuttal and arguments when affidavits of three witnesses regarding examination-in- chief were tendered on behalf of the petitioner-plaintiff and, however, on objection being raised by respondents-defendants that the said evidence cannot be adduced in rebuttal, the same was ordered to be taken off the record by learned trial Court vide impugned order. It has been contended by learned counsel for the petitioner- plaintiff that unless evidence was adduced by respondents-defendants in order to prove the alleged fraud, petitioner-plaintiff could not lead evidence in order to disprove the same and hence, it is contended that petitioner- plaintiff is having right to adduce evidence in rebuttal. She has also placed reliance upon Pawan Kumar v. Surinder and another, 2009(3) Civil Court Cases 380 (P&H). 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 Civil Revision No.3561 of 2011(O&M) -4- 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.” A Division Bench of this Court has interpreted the abovesaid provision 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 Civil Revision No.3561 of 2011(O&M) -5- 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, it is case of respondents-defendants since the very beginning in the written statement that the agreement is result of fraud and rather they were having no right to sell the land in dispute as the same was allotted to father of respondents no.1 to 3 and husband of respondent no.4, out of surplus pool and as per terms of the allotment, the land could not be transferred before expiry of 15 years from the date of allotment. Hence, main issue was on petitioner-plaintiff to prove that the Civil Revision No.3561 of 2011(O&M) -6- agreement to sell was validly and legally executed in his favour by respondents-defendants so as to succeed in his case. Plaintiff has to stand on his own legs. Plaintiff has already adduced evidence in affirmative on the issues. The issues, onus of which was upon the defendants are only rebuttal to the main issues, onus of which was on petitioner-plaintiff. Moreover nothing has been shown to this Court as to whether petitioner- plaintiff has reserved his right to adduce evidence in rebuttal while closing evidence in affirmative. Moreover, it has been rightly observed by learned trial Court that the sale deeds, sought to be produced and proved by petitioner-plaintiff are not necessary for the decision of present controversy as parties to the present suit are not parties to the said sale deeds. So far as Pawan Kumar's case (supra) on which reliance has been placed by learned counsel for the petitioner-plaintiff is concerned, in that case petitioner-plaintiff are allowed to lead expert evidence to prove an issue onus of which was on the defendants on the facts and circumstances of that case and however, the said judgment is not applicable to the facts of the present 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 Civil Revision No.3561 of 2011(O&M) -7- 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. 27.5.2011 (Ram Chand Gupta) meenu Judge