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2014 DIGILAW 1443 (PNJ)

Gurjeet Kaur v. Mani Singh

2014-10-17

G.S.SANDHAWALIA

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JUDGMENT Mr. G.S. Sandhawalia J. (Oral):- The challenge in the present revision petition is to the order dated 22.9.2014 (Annexure P/7) passed by the Additional Civil Judge (Senior Division), Rajpura wherein the request of the plaintiff-petitioner to examine expert by way of rebuttal evidence have been rejected on the ground that the onus was upon the plaintiff-petitioner and the right to rebuttal cannot be exercised unless the onus of proof was upon the other party. 2. The dispute pertains to the estate of Gurdial Singh who expired on 23.3.1984. The plaintiff-petitioner is the daughter of Gurdial Singh. The defendants have set up a will dated 28.2.1984 which is subject matter of challenge of the suit. On the strength of the said will, the mutation has also been entered which is also subject matter of challenge. On the basis of the pleadings the trial Court placed the onus upon the plaintiff whether she was entitled for the relief of declaration and permanent injunction. The defendants in their evidence examined an expert who opined that signatures of Gurdial Singh on the will and the mortgage deed, which bore his standard signatures were similar. It is in such circumstances the application was filed by the petitioner for leading expert evidence in the interest of justice. The application was opposed on the ground that the intention was to delay the decision of the suit and there was no issue on which the plaintiff had to lead rebuttal evidence. The onus was on the plaintiff and evidence should have been led by leading affirmative evidence. 3. Counsel for the petitioner has submitted that comparison of signature is with the mortgage deed which is not part of the record of the pleadings and placed reliance upon Baljit Singh Vs. Manjit Singh and others, [2014(2) Law Herald (P&H) 1822] : 2014(1) PLR 625 to submit that the permission should be given to examine a hand writing expert. 4. A perusal of the said judgment would go on to show that the defendants in that case had examined an expert witness to prove the alleged signatures of the plaintiff on an alleged affidavit Mark-DA which was not referred to in the written statement and suit was for declaration and permanent injunction. In the present case as noticed the dispute pertained to will of the father of the parties which was the bone of contention. In the present case as noticed the dispute pertained to will of the father of the parties which was the bone of contention. The petitioner-plaintiff was well aware of the will and could have got it compared with signatures on any document which had signed by Gurdial Singh. The onus of proving that the will was null and void was upon her. A Division Bench of this Court in Jagdev Singh and others Vs. Darshan Singh and others, [2007(3) Law Herald (P&H) (DB) 1854] : 2007(2) PLR 315 has held that under Order 18 Rule 3 C.P.C. once the onus is upon the plaintiffs, they cannot as a matter of right lead evidence in rebuttal of issues, the onus of proof of which is on them. Relevant observations read as under:- “6. In the present case, the question that is involved is whether the plaintiffs-respondents could examine the handwriting expert in the rebuttal evidence after having led their evidence in the affirmative on the issues the onus of which was on them. The plaintiffs in support of their case want to prove the memo of partition dated 12.5.1989 and the rapat roznamcha which was entered with the Halqa Patwari on 29.7.1994. The onus of proving the said documents was on them. Therefore, it is for them to prove the said documents in accordance with law. The scope and ambit of the right of the plaintiffs to lead evidence in rebuttal on issues, the onus of proof of which is on the plaintiffs was considered by a Division Bench of this Court in Surjit Singh and ors. v. Jagtar Singh and Ors., [2006(4) Law Herald (P&H) (DB) 3199] : 2007(1) RCR(Civil) 537 : AIR 2007 Punjab and Haryana 1. After elaborate consideration of the entire matter, one of us (S.S. Nijjar, J) speaking for the Bench observed as follows :- “In our opinion, Order 18 Rule 3 of the Civil Procedure Code 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 Civil Procedure Code. Accepting such an interpretation would be to ignore a vital part of Order 18 Rule 3 of the Civil Procedure Code. 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) (AIR 1983 Punjab and Haryana 210). 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) (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 (2002(1) PLR 99) (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). 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) (AIR 1982 Punjab and Haryana 432).” In terms of the aforesaid dictum, it is evident that the plaintiffsrespondents cannot as a matter of right lead evidence in rebuttal on issues, the onus of proof of which is on them. The plaintiffs-respondents 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 dated 12.5.1989 and the rapat roznamcha which was got entered with the Halqa Patwari on 29.7.1994 was on them (plaintiffsrespondents). Therefore, they could not examine the handwriting expert as a matter of right. Therefore, it is to be seen in the facts and circumstances of each case whether the plaintiffs can examine a handwriting expert in rebuttal. The ground for examination of the handwriting expert is that the defendant-Jagdev Singh while appearing in the witness box did not give clear answer as regards his signatures on the memo of partition dated 12.5.1989 and the rapat roznamcha which was got entered with the Halqa Patwari on 29.7.1994. In this regard, it is 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 Jagdev Singh 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. However, it would not give a right to the plaintiffs to make clear the point by producing a handwriting expert at that stage. In the circumstances, the learned trial Court while passing the impugned order has violated the procedure provided for leading evidence which has resulted in causing prejudice to the petitioners and would vitiate the impugned order.” 5. In such circumstances, this Court is of the opinion that the plaintiff has failed to lead any evidence to prove that the will is forged and in such circumstances at this stage when the case is fixed for rebuttal and final arguments, she cannot be permitted to delay the proceedings. 6. Accordingly, the present revision petition is dismissed being devoid of any merit. ---------0.B.S.0------------ ----------------