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2009 DIGILAW 1360 (PNJ)

Sardara Singh v. Baljit Singh

2009-08-10

SHAM SUNDER

body2009
JudgmentJudgment Sham Sunder, J. 1. This revision-petition is directed against the order dated 20.09.2007, rendered by the Court of Civil Judge (Junior Division), Ludhiana. vide which it allowed the application of the plaintiff (now respondent), for examining Handwriting & Fingerprints Expert, for proving the execution of the agreement to sell, when the case was fixed for rebuttal evidence. 2. A suit for specific performance of the agreement to sell dated 11.08.1993 was filed by the plaintiffs (now respondents). The plaintiffs led their evidence to prove the execution, validity and legality of the agreement to sell, and closed the same, in affirmative. The defendant (now revision- petitioner) also closed his evidence. When the case was fixed for rebuttal evidence and arguments, an application for examining the Handwriting and Fingerprints Expert, was filed by the plaintiffs, which was allowed by the trial Court, vide the order impugned. 3. Feeling aggrieved, the instant revision petition, was filed by the revision petitioner/defendant. 4. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully. 5. The Counsel for the revision petitioner, submitted that in the written statement, filed by him, he denied the execution, validity and legality of the agreement to sell. He further submitted that the onus to prove the execution, validity, and legality of the agreement to sell, was on the plaintiffs and they were required to produce the evidence, to prove the same, in affirmative. He further submitted that the evidence, which was required to be produced in affirmative, could not be allowed to be produce in rebuttal. He further submitted that the plaintiffs could produce the evidence in rebuttal, in respect of the issues of which the onus lay upon the defendant. He also placed reliance on Dinesh Kumar v. State of Haryana & Ors., 2002(4) RCR(Civil) 366 -- 2003(1) CCC 445, Surjit Singh and others v. Jagtar Singh and others, 2007(1) RCR(Civil) 537- (2007-1) The Punjab Law Reporter 552 (DB) and M/s. Thind Traders v. Jaswant Kaur and others, C.R. No. 1500 of 2004, decided on 21.03.2006 by this Court in support of his contention. He further submitted that, in this view of the matter, the order impugned, being legal, was liable to be set aside. 6. He further submitted that, in this view of the matter, the order impugned, being legal, was liable to be set aside. 6. On the other hand, the Counsel for the respondents submitted that no doubt, the onus to prove the execution, legality and validity of the agreement to sell was on the plaintiffs. He further submitted that he led evidence in affirmative. He further submitted that since the defendants. examined a Handwriting & Fingerprints Expert, in their evidence, the plaintiffs were entitled to rebut the same, by examining the Handwriting & Fingerprints Expert, in rebuttal. He further submitted that the order impugned, being legal and valid, was liable to be upheld. 7. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the revision petition is liable to be accepted, for the reasons to be recorded hereinafter. The onus to prove the execution, legality and validity of the agreement to sell, was on the plaintiffs. They were required to lead evidence to prove this factum in affirmative. If they failed to lead evidence by way of examining a Handwriting & Fingerprints Expert, in affirmative, to prove the execution of the agreement to sell they could not be allowed to lead the same. in rebuttal. They could lead evidence in rebuttal only, in respect of those issues, of which, the onus lay upon the defendant. In Surjit Singh and others-s case (supra) a case decided by a Division Bench of this Court, the principle of law, laid down, was to the effect that Order 18 Rule 3 would not give a right to the plaintiffs, to lead evidence in rebuttal on issues in which the onus of proof was on them. It was further held that accepting such an interpretation, would be to ignore a vital part of Order 18 Rule 3 CPC. The rule clearly postulates that "the party beginning, may, at his option, either produce his evidence, on these issues, or reserve 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. While construing a statutory provision, the Court cannot reconstruct it. No matter, how liberally a provision.in the statute is required to be interpreted, by interpretation it cannot be amended. While 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. Similar principle of law, was laid down in Dinesh Kumar-s and M/s. Thind Traders-s cases (supra), decided by this Court. In view of the principle of law, laid down, in the aforesaid cases, the trial Court, in my considered opinion, was wrong, in coming to the conclusion, that in rebuttal, the plaintiffs could be granted an opportunity to examine a Handwriting & Fingerprints Expert, to prove the execution of the agreement to sell, which they were required to examine by leading evidence, in affirmative. The order impugned, thus, suffers from illegality, and perversity, warranting interference of this Court, in its revisional jurisdiction, under Article 227 of the Constitution of India. The order impugned is, therefore, liable to be set aside. 8. For the reasons recorded above, the petition is accepted. The order dated 20.09.2007, rendered by the Court of Civil Judge, (Junior Division), Ludhiana, is set aside. The application moved by the plaintiffs for examining Handwriting & Fingerprints Expert, in rebuttal, is dismissed. 9. The parties are directed to appear before the trial Court on 04.09.2009, at 10.00 AM positively for further proceedings.