Davinder Kumar vs Mohinder Singh

Sabina, J.—Plaintiff has filed a suit for specific performance of agreement to sell dated 20.9.2004. Vide the impugned order dated 4.3.2011, the Plaintiff was allowed to examine a Handwriting Expert to rebut the expert, examined by the Defendant. Hence the present petition by the Defendant.

Learned Counsel for the Petitioner has submitted that Plaintiff could not be allowed to examine a Handwriting Expert in rebuttal as the Plaintiff has already led his evidence in the affirmative qua issue No. 1.

Learned Counsel for the Petitioner has placed reliance on Sardara Singh v. Baljit Singh 2010(2) RCR 14, wherein it was held that in rebuttal, Plaintiff can only lead evidence in respect of issues, on which onus lies upon the Defendant.

Similar view was taken in Mohan Pal Singh and Anr. v. Karampal Singh and Anr. 2010(4) RCR 627 and Ram Rattan v. Anand Pandit and Ors. 2009(5) RCR 696.

Learned Counsel for the Petitioner has next placed reliance on Surjit Singh and Ors. v. Jagtar Singh and Ors. 2007(1) RCR 537, wherein it was held as under:

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 Code of Civil Procedure. 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 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).

After hearing learned Counsel for the Petitioner, I am of the opinion that the instant petition deserves dismissal.

There is no quarrel qua the legal proposition that Plaintiff can lead the evidence in rebuttal only qua the issues regarding which onus qua proof is placed on Defendant. However, in the present case the facts are different. Issues No. 1 and 10, as framed by the trail court on 13.3.2006, read as under:

(1) Whether the Defendant has executed the agreement to sell in favour of the Plaintiff on 20.9.2004, for valuable consideration? OPP

(10) Whether the agreement to sell dated 20.9.2004 is forged and fabricated? OPD

Thus, in the present case, the Plaintiff could lead evidence in rebuttal qua issue No. 10. Plaintiff wants to examine a Handwriting Expert in order to rebut the expert examined by the Defendant. The expert had been examined by the Defendant to prove issue No. 10. In these circumstances, the impugned order does not call for any interference. The judgments relied upon by the learned Counsel for the Petitioner fail to advance the case of the Petitioner as they are not applicable to the facts of the present case.

Dismissed