Pardeep Singh vs Piara Dass

R.P. Nagrath, J.

The petitioner-defendant has invoked jurisdiction of this Court under Article 227 of the Constitution of India seeking to set aside the order dated 23.04.2014 (Annexure P-4) passed by the trial Court permitting respondent-plaintiff to examine handwriting expert in rebuttal evidence. The respondent filed suit for recovery of Rs. 20,91,000/- based on a promissory note and receipt dated 30.04.2008, which is being contested by the petitioner. The issues from the pleadings of the parties were framed on 15.05.2009 and the crucial issue is whether respondent-plaintiff was entitled to recovery of the suit amount from the petitioner.

I have heard learned counsel for the parties, perused the impugned order and pleadings of the parties and also the paper book.

The respondent-plaintiff has already led his evidence. The petitioner-defendant produced witnesses and also examined handwriting and fingerprint expert. Thereafter, petitioner moved an application with a prayer to frame additional issues. The learned trial Court framed the following additional issues:-

"5(A) Whether the plaint is liable to be rejected for noncompliance of Order 6 Rule 15(4) C.P.C.? OPD

5 (B) Whether the pronote and receipts are forged, tampered document without consideration and are in admissible into evidence? OPD"

Even after framing the additional issues, counsel for both the parties made separate statements that they do not want to lead any evidence on the additional issues. After the petitioner closed his evidence, the trial Court fixed the case for rebuttal evidence, if any and arguments. However, when the matter was fixed for 21.04.2014, counsel for respondent-plaintiff submitted that he wanted to examine Dr. Inderjit Singh, Handwriting and Fingerprint expert in rebuttal evidence and the case was adjourned for examination of the expert.

Learned counsel for the petitioner vehemently contended that without any application filed by the respondent-plaintiff, learned trial Court has permitted the respondent to examine handwriting expert, although he has no right to lead such an evidence by way of rebuttal.

I am of the view that the order passed by the trial Court is patently wrong and illegal as onus to prove the execution of promissory note in question always lay upon the plaintiff. The law on the subject is quite well settled.

In Jagdev Singh and Others Vs. Darshan Singh and Others, , a Division Bench of this Court observed that the plaintiffs in support of their case wanted to prove the memo of partition dated 12.5.1989 and the roznamcha report of Patwari entered on 29.7.1994. The onus of proving the said documents was on plaintiffs and it was for them to prove the said documents in accordance with law. Even if some thing was said about the defendant during Ms. evidence about those documents, the plaintiff had no right to lead evidence in rebuttal on the issues on which plaintiff relied upon in the plaint. This Court referred to the scope and ambit of the right of plaintiffs to lead evidence in rebuttal on issues, the onus of proof of which was on them as held by a Division Bench in Surjit Singh and Others Vs. Jagtar Singh and Others, , in which it was observed as follows:-

"In our opinion, Order 18 Rule 3 of the C.P.C. 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 Jaswant Kaur and Another Vs. Devinder Singh and Others, . 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) 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. 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 MA Punjab Steel Corporation, (2002-1) 130 PLR 99 ). 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. 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 National Fertilizers Ltd. Vs. Municipal Committee, Bhatinda and Another, ."

It was thus held by this Court that it is evident that a plaintiff cannot as a matter of right lead evidence in rebuttal on issues, the onus of proof of which is on them. It was found that the plaintiffs-respondent 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 and the roznamcha report was on the plaintiffs and, therefore, they could not examine the handwriting expert as a matter of right. The ground for examination of the expert was that the defendant while appearing in the witness box did not give clear answer as regards his signatures on the memo of partition and roznamcha report. In this regard, this Court found it appropriate to note that it is for the plaintiffs to prove their case in accordance with law on the basis of evidence. The fact that the defendant in his cross-examination did not make clear the point as to whether the said documents bear his signatures would not per se entitle the plaintiffs to examine a handwriting expert in rebuttal although for not giving answers to the questions posed during cross-examination may entail the drawing of an adverse inference for the purposes of appreciation of evidence.

9 In view of the above discussion, the instant petition is allowed and the impugned order passed by the trial Court is set aside.

Before parting with the judgement, it may be noticed that when the instant petition was listed on 06.05.2014, notice of motion was issued and in the meantime, this Court observed that evidence may be recorded subject to the rights of the parties in the instant petition. The petitioner filed CM No. 9184-CH of 2014 bringing to the notice of this Court that statement of Dr. Inderjit Singh, Handwriting and Fingerprint expert has since been recorded by the trial Court. In view of the fact that the instant petition has been allowed by setting aside the impugned order, it is directed that the statement of handwriting expert recorded in rebuttal during pendency of the instant petition shall not be looked into by the trial Court while disposing of the suit on merits.