JUDGMENT Dr. Bharat Bhushan Parsoon, J.:- Both these civil revision petitions are being decided together as these have common facts and circumstances and are inter-connected. For convenience and clarity, facts are being taken from Civil Revision Petition No.4305 of 2003 firstly. 2. One Tula Ram son of Umrao (since deceased) had sold part of his land vide sale deed dated 4.12.1991. Thereafter, out of his remaining land, some more land was sold by him to different persons through his real nephew who acted as his registered attorney. In a suit preferred by Tula Ram, sale deed dated 4.12.1991 and in yet another suit, transactions made by his nephew acting as his registered attorney were challenged. 3. These suits were strongly resisted by the vendees of Tula Ram. They had taken up a plea that the suits were false and frivolous and had been filed after a gap of more than six years of the impugned transactions in order to extort money from the vendees as the prices of land in the area had shot up tremendously. 4. When plaintiff Tula Ram (represented through his LRs) as also the vendee of sale deed dated 4.12.1991 had completed their evidence and the suit was at the stage of arguments, the lower court was inclined to allow Tula Ram (through his LRs) to examine handwriting expert to prove that in the impugned sale deed signatures as vendor were not of the respondentplaintiff Tula Ram (since deceased and represented through his LRs). 5. Sequelly, an application was moved by the vendee not to allow the respondent-plaintiff to examine the handwriting expert since that would constitute evidence of affirmative nature. This application was strongly contested by the LRs of plaintiff Tula Ram. Rejecting the said application of the vendee-defendant, petitioner herein, LRs of vendor Tula Ram were allowed to examine handwriting expert in rebuttal evidence. 6. Impugning this order of 1.8.2003, claim of the petitioner/nonapplicant/ vendee-defendant is that since the evidence sought to be produced by the legal representatives of respondent-plaintiff Tula Ram is in the nature of affirmative evidence, the same could not have been allowed to be produced in rebuttal. Reversal of the impugned order has been sought. 7. 6. Impugning this order of 1.8.2003, claim of the petitioner/nonapplicant/ vendee-defendant is that since the evidence sought to be produced by the legal representatives of respondent-plaintiff Tula Ram is in the nature of affirmative evidence, the same could not have been allowed to be produced in rebuttal. Reversal of the impugned order has been sought. 7. Per contra, stand of the respondent-LRs is that examination of handwriting expert by the vendee-defendant was a new development, which had necessitated examination of a handwriting expert in rebuttal to such evidence of the vendee-defendant. It is claimed that onus of proof keeps on shifting and thus, respondent-LRs cannot be denied their right to rebut the evidence of the vendee-defendant. 8. Hearing has been provided to the counsel for the parties while going through the paper books. 9. Challenging sale deed dated 4.12.1991, vendor Tula Ram had approached the civil court. Evidence had already been concluded by the parties long ago. The civil suit pending in the court below pertains to the year 1996. After conclusion of the evidence of the parties, arguments on merits were being heard when sensing the mood of the Court, an application was preferred by the applicant-defendant, petitioner herein, for non-granting of permission to the respondent/plaintiff for examination of handwriting expert in rebuttal evidence. 10. Short question to be answered in this revision petition is as to whether evidence which is of affirmative character can be allowed to be led in rebuttal evidence or not? 11. The issues were framed by the lower court on 24.4.2001 which read as under: 1. Whether the plaintiff is entitled to the decree of declaration as prayed for? OPP 2. Whether the plaintiff is entitled for decree of permanent injunction and decree of possession as 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 no locus standi to file the present suit? OPD 5. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD 6. Whether the plaintiff is estopped by his own acts and conduct to file the present suit? OPD 7. Relief. 12. If we go through these issues, it transpires that material issues are No.1 and 2, onus of proving which issues is on the plaintiff. OPD 6. Whether the plaintiff is estopped by his own acts and conduct to file the present suit? OPD 7. Relief. 12. If we go through these issues, it transpires that material issues are No.1 and 2, onus of proving which issues is on the plaintiff. Needless to say that the parties have already produced their evidence and arguments were being advanced when the impugned order was passed by the lower court while relying on judgment of this Court titled Kashmir Kaur Vs. Bachan Kaur 2000(1) PLR 606. This judgment has since been overruled by a Division Bench judgment of this Court reported as Surjit Singh and others v. Jagtar Singh and others, [2006(4) Law Herald (P&H) (DB) 3199] : 2007 (1) RCR (Civil) 537 wherein in para 15, 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 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 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. 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)” 13. In yet another judgment reported as Jagdev Singh and others Versus Darshan Singh and others, [2007(3) Law Herald (P&H) (DB) 1854] : 2007 (1) RCR (Civil) 794, it was held that the plaintiff leading evidence on issues onus of proof of which was on him, cannot be allowed to lead evidence in rebuttal on such issues if he has not reserved his right to lead such evidence earlier to beginning of evidence by the opposite party. Relevant part of the observations of this Court as mentioned in para 8 of the judgment reported as Subhash Chand Gupta Versus Jiya Lal Sharma, [2010(1) Law Herald (P&H) 26] : 2010 (1) PLR 550 , is to the following effect: “After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the revisionpetitioner, in my considered opinion, the revision-petition, deserves to be dismissed, for the reasons to be recorded, hereinafter. Since the defendant/respondent, denied the execution of the agreement to sell, in the written statement, it was for the plaintiff/revision-petitioner, to prove the same, by leading whatever evidence, he wanted to lead, in affirmative. Admittedly, he led his evidence, and closed the same, but he did not think it proper, to examine the Handwriting and Finger Prints Expert, at that time. He closed the evidence, in affirmative, with his eyes wide open. Even the defendant, closed his evidence. Thereafter, when the case was fixed for rebuttal evidence and arguments, he moved the application, in which, the order impugned, was pressed. If the plaintiff/revisionpetitioner, failed to lead evidence, by way of examining the Handwriting and Finger Prints Expert, in evidence, which was led, in affirmative, to prove the execution of the agreement to sell, he could not be allowed, to lead the same, in rebuttal. The plaintiff/revision-petitioner, could lead evidence, in rebuttal only, in respect of the issues, of which, the onus lay upon the defendant.” 14. Similarly, in Upinder Singh Lamba v. Raminder Singh 2012(3) PLR 170, this Court in para 17 of the judgment has observed as under: “From the enunciation of law and the perusal of the issues framed by the learned court below, it can safely be concluded that the burden to prove as to whether the respondent-plaintiff is entitled to recover Rs.5,00,000/- from the petitioner-defendant on account of his malicious prosecution, is on the plaintiff. He had to discharge it. Mere acquittal of an accused in a criminal case does not give rise to a presumption of his malicious prosecution in a suit for damages on that account. The issue has to be proved before the civil court independently. Whatever evidence the respondent-plaintiff wanted to lead to discharge the burden to prove issue no. 1 was to be produced at the very first instance. The case of the plaintiff-respondent from the very beginning is that it was a case of malicious prosecution. The issue has to be proved before the civil court independently. Whatever evidence the respondent-plaintiff wanted to lead to discharge the burden to prove issue no. 1 was to be produced at the very first instance. The case of the plaintiff-respondent from the very beginning is that it was a case of malicious prosecution. Once the burden on the issue, in discharge of which evidence in rebuttal is sought to be led was on the plaintiff, his prayer to lead evidence in rebuttal could not be accepted. The learned court below has gone wrong in passing the impugned order and permitting the respondentplaintiff to examine the hand-writing expert.” 15. Further, in Ram Rattan v. Anand Pandit and others 2009(5) RCR (Civil) 696, following observations were made by this Court in para 12 of the judgment: “Faced with this situation, learned counsel for the respondents contended that in fact the evidence in rebuttal was required to controvert the evidence led by the defendants on issue No.3. However, this contention also cannot be accepted. Evidence to prove the agreement was required to be led on issue No.1 and not on Issue No.3 and therefore, the evidence sought to be led by the respondent/plaintiffs was in fact on issue No.1, the onus of which was on the plaintiff/respondents and therefore, the respondent/plaintiffs could not have been permitted to lead evidence by examining the Expert in rebuttal to prove the agreement of sale.” 16. In yet another judgment reported as Tejinder Kaur Versus Kishan Singh and others 2008(1) RCR (Civil) 485, it has been held by this Court in para 10 as below: “The contentions raised by the learned counsel for the respondent cannot be accepted. The High Court Rules and Orders merely lay down that the jurisdiction of the Court to examine the witnesses at any stage, cannot be restricted. The said rule does not in any manner go contrary to the judgment of Division Bench of this Court in the case of Surjit Singh and others (supra). The authorities relied upon by the petitioner also deal with the right of the Court to allow the party to lead additional evidence with respect to a fact which was not within his knowledge or which could not be known in spite of due diligence. The authorities relied upon by the petitioner also deal with the right of the Court to allow the party to lead additional evidence with respect to a fact which was not within his knowledge or which could not be known in spite of due diligence. However, the right to lead evidence in rebuttal is with respect to an issue which was already within the knowledge of the party and therefore, the Division Bench of this Court come to the conclusion that the party cannot be allowed to lead evidence in rebuttal on issue, the burden which is on the said party. The learned trial Court therefore, was not justified in permitting the plaintiff-respondent to lead evidence in rebuttal to fill in lacuna. This Court is bound by the decision of Division Bench of this Court in the case of Surjit Singh and others (supra).” 17. In view of the clear position of law enunciated in these judgments, evidence which was clearly to be led in affirmative by the respondent-plaintiff cannot be allowed to be produced in rebuttal evidence. 18. Sequelly, accepting both these revision petitions, the impugned orders are reversed. The applications of the petitioner-defendant are allowed. The respondent-plaintiff is debarred from examining handwriting expert in rebuttal evidence. 19. Parties are directed to appear before the lower court on 9.10.2014. 20. Since the suits are pending adjudication since 1996, the lower court would decide the same within three months from the date of receipt of certified copy of this order even by conducting day to day proceedings, if so required. 21. Nothing observed above shall have any bearing on the merits of the suits pending before the lower court. ---------0.B.S.0------------ ------------------------