C.R. No.3862 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No.3862 of 2006 Date of Decision: 10.3.2008 Jaswinder Kaur .....Petitioner Vs. Sarwan Singh and others ...Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Rajbir Wasu, Advocate for the petitioner. Mr.Amit Jaswal, Advocate for respondents no.1 and 5. Mr.R.S. Athwal, Advocate for respondent no.6. ... RAJIVE BHALLA, J (Oral) The petitioner impugns an order dated 12.6.2006 passed by the Additional Civil Judge (Senior Division), Jalandhar, accepting an objection raised by the respondents/defendants and disallowing the petitioner/plaintiffs evidence in rebuttal. The petitioner, claiming to be the wife of Pal Singh, filed a suit for declaration that she is owner in possession of the suit property and also prayed for grant of permanent injunction, to restrain the respondents from interfering in her peaceful possession. The respondents denied that the petitioner was the wife of Pal Singh and placed reliance upon a sale deed, allegedly executed by Pal Singh in their favour to assert their ownership. The learned trial Court framed the following issues :- “1. Whether the plaintiff is entitled to relief of declaration as prayed for ? OPP. 2. Whether the plaintiff is entitled to permanent injunction as C.R. No.3862 of 2006 2 prayed for ? OPP. 3. Whether the suit is not maintainable in the present form ? OPD. 4. Whether the plaintiff has no cause of action and has no locus standi to file the present suit ? OPD. 5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction ? OPD. 6. Relief.” The onus under issue no.1 was placed upon the petitioner/plaintiff, whereas the onus to establish issue no.4 was placed upon respondents/defendants. The petitioner stepped into the witness box and deposed that she was the wife of Pal Singh. Her evidence, however, was closed by order. After the respondents concluded their evidence, the petitioner filed an application for liberty to lead additional evidence. The application was dismissed by the trial Court. The petitioner challenged the order of dismissal by filing a revision, which was dismissed as withdrawn on 9.3.2006, with liberty to lead evidence in rebuttal, if it is so permitted under the law. The order dated 9.3.2006 reads as follows :- “ The plaintiff has filed this petition under Article 227 of the Constitution of India for setting aside the order date 1.2.2006 passed by the Additional Civil Judge (Sr.Division), Jalandhar, whereby her application for additional evidence has been dismissed. After arguing for some time, counsel for the petitioner C.R. No.3862 of 2006 3 states that he may be permitted to withdraw this petition with liberty to lead evidence in rebuttal, if it is so permitted, under the law. Dismissed as withdrawn with the aforesaid liberty.” The petitioner, thereafter, was allowed to lead evidence in rebuttal and for that purpose, summoned her witnesses. After the examination-in-chief of Harjinder Singh, Election Kanungo, the respondents raised an objection that the petitioner could not be allowed to produce evidence in rebuttal, as the evidence sought to be produced should have been produced in the affirmative. The trial Court upheld the objection and disallowed the evidence in rebuttal. Counsel for the petitioner submits that the petitioner discharged the onus placed upon her under issue no.1 by stepping into the witness box and deposing that she was the wife of Pal Singh. The respondents, thereafter, to discharge the onus placed upon them under issue no.4, produced three witnesses. The petitioner, therefore, was entitled to lead evidence in rebuttal to the evidence produced by the defendants under issue no.4. It is, thus, contended that the learned trial Court committed an error in disallowing rebuttal evidence. Counsel for the respondents, however, asserts that as the petitioner's evidence was closed by order and the petitioner did not reserve her right to lead evidence in rebuttal, the trial Court rightly held that she could not lead any evidence in rebuttal. It is further asserted that the evidence now sought to be produced should have been led by the petitioner while she was leading her evidence in the affirmative under issue no.1. The C.R. No.3862 of 2006 4 petitioner cannot be allowed to lead evidence in the affirmative in the garb of rebuttal evidence. Reliance for the aforementioned arguments is placed upon National Fertilizers Ltd., Bhatinda, V. Municipal Committee, Bhatinda, 1982 PLR 322 and Smt.Jaswant Kaur and another V. Devinder Singh and others, 1984(1) ILR (Punjab) 97. I have heard learned counsel for the parties and perused the impugned order. Parties are ad-idem as regard the issues that have been framed and the respective onus that has been placed. The petitioner stepped into the witness box and in order to establish her case, under issue no.1, deposed that she was the wife of Pal Singh and deposed in general terms, with respect to the defence set up by the respondents. However, on 17.4.2001, her evidence was closed by order. The respondents, thereafter, led their evidence to discharge the onus placed upon them under issue no.4, namely that the petitioner was not the wife of Pal Singh and, therefore, had no locus standi to file the suit. The petitioner filed an application, praying for liberty to lead additional evidence. The application was dismissed. A revision filed by the petitioner was dismissed as withdrawn, with liberty to lead evidence in rebuttal, if it is so permitted. The trial Court, thereafter, granted liberty to the petitioner to lead her evidence in rebuttal. After Harjinder Singh, Election Kanungo, was examined, the respondents raised an objection that the petitioner could not lead evidence in rebuttal. The objection was upheld by the trial Court and the petitioner's prayer to lead evidence in rebuttal was negatived by holding that as the respondents had not led any evidence regarding any new fact and had only rebutted the statement made by the petitioner, during her evidence in the affirmative, the C.R. No.3862 of 2006 5 petitioner could not be granted an opportunity to lead evidence in rebuttal. Before proceedings to examine the merits of the present case, it would be necessary to briefly set out the nature of the provisions of Order 18 Rule 3 and the rule of law that governs interpretation of procedural impediments, placed on the exercise of judicial power. Order 18 Rule 3, provides that where there are several issues and the burden to prove some of which lies on the other party, the party beginning may at his option produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party i.e. reserve the right to lead evidence in rebuttal. A plain reading of Order 18 Rule 3 would bear out that Order 18 Rule 3-A, recognises the right of a plaintiff to lead evidence in rebuttal to an issue, onus whereof has been placed upon a defendant. At this stage, it would be relevant to reiterate the oft repeated principle that procedural impediments to the exercise of judicial power, are to be considered with a degree of flexibility and would not divert a Court from its primary obligation i.e. its endeavour to do justice. The aforementioned observations would be fortified with the words of a Division Bench in Jaswant Kaur's case (supra), which reads as follows :- “Perhaps at the very threshold it must be borne in mind that it is essentially a procedural provision that we are called upon to construe. The oft repeated adage that the procedure is the hand- maid of justice and intended to advance its course and not to obstruct the same is a sound canon of construction for provisions of this nature. Therefore, a somewhat liberal interpretation as against an overly strict one is inevitably called for.” C.R. No.3862 of 2006 6 In the present case, onus of issue no.4 was placed upon the defendants. Admittedly, the defendants led evidence in discharge of the onus placed upon them. The petitioner/plaintiff, therefore, had a statutory right, conferred by the provisions of Order 18 Rule 3 of the Code to lead evidence in rebuttal. The finding recorded by the Court below that as the respondents/defendants had not led any fresh evidence but had merely rebutted the statement made by the petitioner/plaintiff in her deposition as a plaintiff, was entirely irrelevant. The learned trial Court, had no jurisdiction to appraise the evidence produced by the parties and draw inferences as to its nature and significance to the controversy in hand. An argument addressed by counsel for the respondents/defendants that as the plaintiff's/petitioner's evidence was closed by order, she could not be allowed to lead evidence in rebuttal, is based upon the judgement National Fertilizers Ltd. (supra). Though, the controversy in the above judgement relates to the right to lead evidence in rebuttal, a passing observation, appears to have been made that an order closing evidence by court order, would entail closure both of the evidence in affirmative, as well as in rebuttal. The said observation, with due respect is merely obiter-dicta and does not arise from a plain reading of any provision of the Code of Civil Procedure, much less from the provisions of Order 18 Rule 3. Judicial orders, more particularly orders that are penal in nature, must be construed strictly and unnecessary inferences, as to their nature and the sphere of operation, must not be read into or drawn therefrom. The right under Order 18 Rule 3 to lead evidence in rebuttal, can only be curtailed by the plaintiff or by an order specifically directing closure of the plaintiff's evidence in rebuttal. C.R. No.3862 of 2006 7 Admittedly, the petitioner's evidence was closed by order, while she was leading her evidence in the affirmative. To construe an order, closing the evidence at the stage of affirmative evidence, as an order foreclosing the right to lead evidence in rebuttal would, in my considered opinion, assign an extreme and unwarranted interpretation to the nature of such an order. An order closing evidence, where the order is silent, as to the nature of the evidence closed, would draw its colour from the stage of the suit and as the petitioner/plaintiff was leading evidence in the affirmative, her evidence, in the affirmative alone would be deemed to have been closed. The petitioner's right, therefore, to lead her evidence in rebuttal subsists. The aforementioned conclusion, however, must not be misunderstood to grant a right to lead evidence on all issues and must be strictly confined to the right to lead evidence in rebuttal alone, if available. The judgement in National Fertilizers Ltd. (supra) would, therefore, not advance the respondents case in any manner. It is, therefore, apparent that the petitioner had a right to lead evidence in rebuttal to the evidence led by the respondents under issue no.4. Consequently the revision petition is allowed and the impugned order dated 12.6.2006 is set aside. Parties are directed to appear before the trial Court on 10.4.2008. The petitioner shall be granted two effective opportunities at her own risk and responsibility to lead evidence, subject to payment of Rs.2500/- as costs. The learned trial Court shall ensure that the trial concludes within a period of four months from the next date of hearing. 10.3.2008 ( RAJIVE BHALLA ) GS JUDGE