Civil Revision No. 269 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 269 of 2010(O&M) Date of Decision: March 03, 2010 Hari Singh ...... Petitioner Versus M/s Ghewar Chand Gian Chand and another ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Sandeep Punchhi, Advocate for the petitioner. Mr. Vikas KUmar, Advocate for the respondents. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This petition has been filed against the order allowing the respondents to cross-examine the handwriting expert in rebuttal with respect to an issue the onus of which was on them. It is, however, not disputed that the respondents had kept their right to examine the expert in rebuttal reserved at the time when they had closed their evidence. The learned trial court noticed that in the application itself the respondents had claimed that the petitioner was habitual of putting signatures in different handwriting with different script and that it was for this reason that his signatures had to be got compared. Thereafter the learned trial court on considering the entire facts and circumstances of the case came to the conclusion that though Civil Revision No. 269 of 2010(O&M) 2 normally evidence in rebuttal cannot be led on an issue the onus of which is on the said party yet in the present case, it would be necessary to give this permission to do complete justice between the parties. Learned counsel for the petitioner has relied upon Surjit Singh v. Jagtar Singh reported as 2007(1) RCR(Civil) 537 to argue that Order 18 rule 3 CPC would not give a right to the plaintiff to lead evidence in rebuttal on issues the onus of which is on the plaintiff. However, learned counsel for the respondents has relied upon a subsequent decision of this court in Jagdev Singh and others v. Darshan Singh and others reported as 2007(1) RCR (Civil)wherein after considering the judgment in Surjit Singh's case (supra) this Court held as follows:- “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 roznamcha which was entered with the Halqa Patwari on 29.7.1994. The onus 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 Civil Revision No. 269 of 2010(O&M) 3 (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 'that 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 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 Civil Revision No. 269 of 2010(O&M) 4 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 terms of the aforesaid dictum, it is evident that the plaintiffs- respondents cannot as a matter of right lead evidence in rebuttal on issues, the onus of proof of which is on them. The plaintiffs-respondents had concluded their evidence in the affirmative on 11.3.1998 and reserved their right to produce evidence in rebuttal. However,the onus to prove the memo of partition dated 12.5.1989 and the rapat roznamcha which was got entered with the Halqa Patwari on 29.7.1994 was on them (plaintiffs-respondents). Therefore, they could not examine the handwriting expert as a matter of right. Therefore, it is to be seen in the facts and circumstances of each case whether the plaintiffs can examine a handwriting expert in rebuttal.” Civil Revision No. 269 of 2010(O&M) 5 Thus, in my opinion in view of the later judgment it cannot be said that in no case can a plaintiff lead evidence in rebuttal on an issue the onus of which was on him. The matter can be looked at from another angle. Order 18 rule17 empowers the Court to recall any witness at any time. In the present case the trial Court has permitted the respondents to lead evidence in rebuttal only after giving a finding that it would be in the interest of justice so to do. This finding has not been shown to be eroded with such material irregularity as to be liable for interference under article 227 of the Constitution of India. Consequently this petition is dismissed. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE March 03, 2010 sunita