Civil Revision No.3205 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.3205 of 2010(O&M) Date of Decision: January 24, 2011 Mohinder Singh .....Petitioner v. Balbir Singh and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Sumeet Goel, Advocate for the petitioner. Mr.J.P.Dhull, Advocate for the respondents. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for quashing/setting aside order dated 24.4.2010 passed by learned Civil Judge, Senior Division, Kaithal, Haryana, Annexure P1, vide which application filed by petitioner-defendant for not permitting him to lead evidence in rebuttal by way of producing hand writing/ finger print expert was dismissed. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. Brief facts relevant for the decision of revision petition are that respondent-plaintiffs filed a civil suit against petitioner-defendant for possession by way of specific performance of the agreement to sell dated 1.9.2004. Petitioner-defendant filed written statement as no such agreement as relied upon by respondent -plaintiffs was ever entered into and that alleged agreement to sell is void being not executed by petitioner-defendant. From the pleadings of the parties, following issues were framed by learned trial court on 12.12.2006:- “1) Whether the defendant had agreed to sell the suit land to Civil Revision No.3205 of 2010(O&M) -2- the plaintiffs vide agreement to sell dated 1.9.04 for a sale consideration of Rs.5,55,000/- per acre as alleged? OPP 2) Whether the defendant had received the amount money of Rs.2,50,000/- from the plaintiffs on 1.9.04 vide receipt? OPP 3) Whether the defendant had agreed to execute the sale deed on or before 20.5.05? OPP 4) Whether the plaintiffs are ready and willing to perform part of contract, if so its effect? OPP 5) Whether the suit of plaintiffs is not maintainable in the present form? OPD 6) Whether the civil court have no jurisdiction to try and decide this suit? OPD 7) Whether the plaintiffs have no locus standi and or cause of action to file the suit ? OPD 8) Whether the suit is bad for want of ad valorum court fees? OPD 9) Relief.” Case was fixed for evidence of respondent-plaintiffs. After availing several opportunities six witnesses were examined by respondent -plaintiffs and thereafter evidence was closed. Petitioner-defendant also closed evidence on 3.1.2009 and the case was adjourned for arguments. However, later on respondent-plaintiffs have sought to produce hand-writing/finger print expert to prove alleged signatures of petitioner- defendant on the agreement. Hence, an application was filed by present petitioner-defendant for not permitting the plaintiffs to lead the evidence in rebuttal. However, vide impugned order dated 24.4.2010, the said application of the petitioner-defendant was dismissed and respondent- plaintiffs were permitted to examine the hand-writing/finger print expert. Aggrieved against the said order, the present revision petition has been filed. It has been contended by learned counsel for the petitioner- defendant that onus to prove that alleged agreement to sell was executed by petitioner-defendant in favour of respondent-plaintiffs was on respondent plaintiffs, as is clear from the issues framed as reproduced above and hence, it is contended that respondent-plaintiffs should have examined the Civil Revision No.3205 of 2010(O&M) -3- hand writing/finger print expert in affirmative evidence and that they are having no right to lead such evidence in rebuttal. On the other hand, it has been argued by learned counsel for the respondent-plaintiffs that it was in cross-examination of petitioner- defendant that he denied his signatures on the agreement and hence, respondent-plaintiffs want to examine hand-writing/finger print expert to disprove the same. A careful perusal of the impugned order passed by learned trial Court shows that even learned trial Court has mentioned in the order that argument of counsel for respondent-plaintiffs that it was in the cross- examination of defendant that he denied his signatures on the agreement for the first time cannot be believed as defendant had specifically denied the same in the written statement itself and that onus was also upon them to produce whatsoever evidence they deem to be fit to prove their version and hence, hand writing/finger print expert should have been examined in affirmative. However, despite that without any reason, respondent-plaintiffs were permitted to examine the hand-writing/finger print expert in rebuttal evidence on the plea that petitioner-defendant would get an opportunity to cross-examine him. Law is well settled by a Division Bench of this Court in Surjit Singh and others v. Jagtar Singh and others 2007(1) RCR (civil) 537 and in subsequent another Division Bench Judgment of this Court in Jagdev Singh and others v. Darshan Singh and others 2007(1) RCR (Civil) 794, that plaintiffs cannot as a matter of right lead evidence on issues, onus of which was on them, even if they have reserved their right to prove in rebuttal. It is pertinent to reproduce the relevant paragraph in the judgment rendered by Hon'ble Division Bench of this Court in Jagdev Singh's case (supra), which reads as under:- “6. In the present case, the question that is involved is whether the plaintiffs-respondents could examine the handwriting expert in the rebuttal evidence after having led their evidence in the affirmative on the issues the onus of which was on them. The plaintiffs in support of their case want to prove the memo of partition dated 12.5.1989 and the rapat Civil Revision No.3205 of 2010(O&M) -4- roznamcha which was entered with the Halqa Patwari on 29.7.1994. The onus of proving the said documents was on them. Therefore, it is for them to prove the said documents in accordance with law. The scope and ambit of the right of the plaintiffs to lead evidence in rebuttal on issues, the onus of proof of which is on the plaintiffs was considered by a Division Bench of this Court in Surjit Singh and Ors. v. Jagtar Singh and Ors., 2007 (1) RCR (Civil) 537: AIR 2007 P&H 1. After elaborate consideration of the entire matter, one of us (S.S. Nijjar, J) speaking for the Bench observed as follows: “ 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) (AIR 1983 P&H 210). 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 Civil Revision No.3205 of 2010(O&M) -5- Kaur, (2000 (2) RCR Civil 133) (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 (2002 (1) PLR 99) (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) (AIR 1982 P&H 432). In the present case as well, the onus to prove execution of agreement by petitioner-defendant in favour of respondent-plaintiffs was on them and they were to adduce the evidence in affirmative including examination of hand writing expert to discharge the said onus. Execution of the said agreement was denied by petitioner-defendant in the written statement itself. Hence, merely, on the ground that defendant has denied his signatures on the agreement to sell in the cross-examination, would not give right to the plaintiffs to make clear the point by producing hand Civil Revision No.3205 of 2010(O&M) -6- writing/finger print expert in rebuttal evidence. The present case is squarely covered by Jagdev Singh's case (supra). As a sequel to my above discussion, the present revision petition is allowed. Impugned order dated 24.4.2010, passed by learned trial Court is set aside and it is made clear that respondent-plaintiffs are having no right to examine the hand writing/finger print expert in rebuttal evidence. However, it is made clear that nothing observed herein shall be construed to have any bearing on the decision of this case on merit by learned trial Court. 24.1.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.