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2014 DIGILAW 1610 (PNJ)

Avtar Singh v. Baldev Singh

2014-11-21

ARUN PALLI, SATISH KUMAR MITTAL

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JUDGMENT : Arun Palli, J. 1. Pursuant to a reference, dated 07.12.2012, we are seized of the matter. It would be expedient to set out as to what indeed is the issue that has been referred to be resolved by a larger bench. The reference reads as thus: "Learned counsel for the petitioners/defendants has referred to the provision of Order 18 Rule 3 of the Code of Civil Procedure (for short 'the Code') and cited judgments delivered in Surjit Singh and Others v. Jagtar Singh and Others, 2007 (1) RCR (Civil) 537, which approved the observations made in the cases Swaran Singh v. Bhagwan Singh, 2000 (1) RCR (Civil) 521 and National Fertilizers Ltd. Vs. Municipal Committee, Bhatinda and Another, AIR 1982 P&H 432 , wherein it was held that if the plaintiff has led evidence on all the issues and does not reserve the right to lead evidence on the issues the burden of which is on the defendants, then permission to the plaintiff to lead evidence in rebuttal on even those issues the onus of which is upon the defendants cannot be granted as the same would be against the observations made in the aforesaid judgments and would prejudice the rights of the defendants. To the contrary, it is argued that provisions of Order 18 Rule 3 of the Code cannot be read independently but have to be read in conjunction with Order 18 Rule 1 of the Code. There is handicap for the plaintiff to lead evidence upon the issues in the affirmative the onus of which is upon the defendants. The following are exigencies which may invite the plaintiff to lead evidence in rebuttal to those issues:- (1) If there is no such issue, the onus of which is upon the plaintiffs. (2) The plaintiffs never knew what sort of evidence the defendants would lead on those issues. (3) Unless the defendants has opened his cards to lead evidence it would be difficult for the plaintiffs to anticipate the extent of evidence sought to be produced. (4) In case the defendants lead no evidence upon the issues, then it would be futile exercise for the plaintiffs, if the plaintiffs lead evidence on those issues in affirmative. (3) Unless the defendants has opened his cards to lead evidence it would be difficult for the plaintiffs to anticipate the extent of evidence sought to be produced. (4) In case the defendants lead no evidence upon the issues, then it would be futile exercise for the plaintiffs, if the plaintiffs lead evidence on those issues in affirmative. (5) It is imperative right of the plaintiffs to lead evidence in rebuttal to such issues and the procedural law is not mandatory but directory in nature and in such circumstances it would not be necessary for the plaintiffs to reserve right to lead evidence in affirmative when the plaintiffs has otherwise the right and law permits him to lead evidence in rebuttal to such issues. The judgments, as referred to above, appear to be on different set of facts and do not discuss the scope of Order 18 Rule 1 of the Code. It also appears that the judgments were delivered with a view to avoid unnecessary adjournments to be given to the plaintiff for providing him an opportunity time and again to lead evidence on unnecessary issues, which are legal in nature. The question with regard to the applicability of these provisions of law are almost coming for consideration every day. In view of the aforesaid facts, the following questions arise for determination in cases where the onus of some issue lies upon the defendant:- (1) Whether it is mandatory for the trial court to provide an opportunity to the plaintiff to lead evidence in rebuttal only in those cases where he had reserved his right of rebuttal? (2) Whether plaintiff can independently lead evidence in rebuttal over such issues, the onus of which is purely on the defendant? (3) Whether Rule 3 of Order 18 of the Code if read in conjunction with Order 18 Rule 1 of the Code widens the scope of evidence in rebuttal? (2) Whether plaintiff can independently lead evidence in rebuttal over such issues, the onus of which is purely on the defendant? (3) Whether Rule 3 of Order 18 of the Code if read in conjunction with Order 18 Rule 1 of the Code widens the scope of evidence in rebuttal? Let the matter be placed before Hon'ble the Chief Justice for referring aforesaid questions to a larger bench, if he so desires." As is made out, a Division Bench of this court, in the case of Surjit Singh and Others v. Jagtar Singh and Others, 2007 (1) RCR (Civil) P&H 537 (DB), interpreted the provisions of Order 18 Rule 3 of the Civil Procedure Code [CPC] and examined "the scope and ambit of the right of the plaintiff to lead evidence in rebuttal, on issues the onus of proof of which is on the plaintiff." On a consideration of the matter in issue and various decisions, Single Bench as also the Division Bench, of this court, it was concluded that, the rule clearly postulates that "the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by other party." Meaning thereby, the plaintiff could either lead his entire evidence on all those issues or has the option to reserve his right to lead rebuttal evidence to the evidence that is to be led by the defendant, as regards those issues, the onus of proof of which is on the defendant. Further, an option to reserve such a right has to be exercised at the time when plaintiff closes his evidence in affirmative. And in any case, the last stage to exercise such an option, can well be before the other party begins its evidence. The Division Bench expressed its disagreement vis-a-vis those decisions where the plaintiff was held entitled to lead evidence in rebuttal as a matter of right. It would be crucial to refer to the conclusions arrived at by the Division Bench, which read as thus: "15. 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. 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 Jaswant Kaur and Another Vs. Devinder Singh and Others, AIR 1983 P&H 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 (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 Punjab Steel Corporation Vs. M.S.T.C. Limited, AIR 2001 P&H 331 . In that case the plaintiff sought to lead evidence in rebuttal, after the close of the evidence of the defence. We are also unable to agree with the observations of the learned single Judge in the case of Punjab Steel Corporation Vs. M.S.T.C. Limited, AIR 2001 P&H 331 . 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. Vs. Municipal Committee, Bhatinda and Another, AIR 1982 P&H 432 ." Apparent concern, that has been expressed by the learned Single Judge, through the reference, is that, the right of the plaintiff to lead evidence in rebuttal, as regards the issues, the onus of proof of which is upon the defendant, is inherent and indefeasible. Something, that naturally vests in the plaintiff, notwithstanding whether he has reserved any such right to lead rebuttal evidence. Therefore, if the interpretation drawn by the Division Bench in Surjit Singh's case (supra) is followed, there could well be a situation, where plaintiff is completely deprived of an opportunity to lead rebuttal evidence for no fault of his. Few such situations, in this regard, have been illustrated by the learned Single Judge, in the reference. Thus, a doubt is expressed as regards the correctness of the view drawn by the Division Bench in Surjit Singh's case (supra), on certain specific issues that have been culled out in the reference. 2. Before we proceed further, it would be apposite to refer to the provision of Order 18 Rule 3 CPC, at this juncture, which reads as thus: 3. 2. Before we proceed further, it would be apposite to refer to the provision of Order 18 Rule 3 CPC, at this juncture, which reads as thus: 3. Evidence where several issues - Where there are several issues, the burden of proving some of which lies on the party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case. 3. To our minds, the afore-reproduced provision is clear, concise and incapable of any misconstruction. It clearly postulates that where there are several issues, the burden of proof some of which lies on the other party, the party beginning (generally the plaintiff) has the option to either lead his entire evidence on all the issues or reserve its right to lead rebuttal evidence to the evidence that is to be led by the defendant, vis-a-vis the issues, the onus of proof whereof is upon the defendant. And in that case, the party beginning will produce its evidence on those issues after the other party has produced all his evidence. The expression "and the other party may then reply specially on the evidence so produced by the party beginning" do not conceive or contemplate yet another opportunity for the other party to lead any further evidence. Ex facie, its just a right to respond, reply and advance submissions, as regards the said evidence, is all, what is envisaged. Likewise, the further expression, "the party beginning will then be entitled to reply generally on the whole case" implies a right to respond, reply and advance submissions by the party beginning on the whole case. Meaning thereby, once the party beginning has led its entire evidence on all the issues or reserved its right to lead rebuttal evidence, as regards the issues, the onus of proof whereof is on the defendant, no third stage or situation, for the party beginning, to still lead evidence generally on the whole case, is contemplated. Meaning thereby, once the party beginning has led its entire evidence on all the issues or reserved its right to lead rebuttal evidence, as regards the issues, the onus of proof whereof is on the defendant, no third stage or situation, for the party beginning, to still lead evidence generally on the whole case, is contemplated. In any case, wherever a right to lead evidence is promised, the Legislature has consciously employed the expression "evidence". Therefore, the expression "the party beginning will then be entitled to reply generally on the whole case" does not relate to a right to lead evidence but only to respond, reply and advance submissions on the whole case. Any other interpretation, in our opinion, would result in complete misconstruction of the afore-reproduced provision and thus, cannot be countenanced. 4. As regards certain exigencies that have been illustrated, where the plaintiff shall be completely deprived of an opportunity to lead evidence in rebuttal without being at fault, in our view, we cannot view or visualize any such situation, as is being demonstrated hereinafter. Illustration I, that if there is no issue, the onus of which is upon the plaintiff, there would be no occasion for plaintiff to lead evidence in affirmative and consequently an opportunity to reserve a right to lead evidence in rebuttal to the evidence led by the defendant. Any such perception, to our minds, is wholly unfounded. Thus, it would be crucial, at this stage, to refer to the provision of Order 18 Rule 1 CPC, which reads as thus: 1. Right to begin - The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin. A bare reading of the afore-reproduced provision reveals that it is always the plaintiff, who has to begin the evidence, minus a situation, as conceived in the provision itself. Meaning thereby, if the defendant begins the evidence first, then, he is the party beginning and plaintiff is the other party, therefore, after the party beginning leads his evidence, the plaintiff would certainly have a right to lead evidence in rebuttal being the other party. Meaning thereby, if the defendant begins the evidence first, then, he is the party beginning and plaintiff is the other party, therefore, after the party beginning leads his evidence, the plaintiff would certainly have a right to lead evidence in rebuttal being the other party. Illustrations 2 to 4, suffice it to say, provisions of Order 18 Rule 3 CPC, not only promise a right to the plaintiff to lead evidence but also extends an option to the plaintiff to either lead his entire evidence on all the issues or after leading his evidence in affirmative, reserve a right to lead rebuttal evidence by way of an answer to the evidence that is to be led by the defendant. Therefore, if the plaintiff intends to lead rebuttal evidence only after the defendant has led evidence as regards the issues, onus of which is upon the defendant, he can exercise his option and reserve his right. Illustration 5, indeed is not a situation or an exigency because of which plaintiff shall suffer or stand deprived of a right to lead rebuttal evidence. In fact, that is the view expressed and the interpretation drawn by the learned Single Judge, which we would address and deal with hereinafter, while answering the specific issues that have been formulated for our consideration. Question No. 1 i.e. whether it is mandatory for the trial court to provide an opportunity to the plaintiff to lead evidence in rebuttal only in those cases where he had reserved his right of rebuttal?" 5. Division Bench of this court in Surjit Singh's case (supra), while relying upon a decision of an earlier Division Bench in Jaswant Kaur and Another Vs. Devinder Singh and Others (supra) and a Single Bench in National Fertilizers Ltd. Vs. Municipal Committee, Bhatinda and Another (supra), crystallized the true import of the provisions of Order 18 Rule 3. And the principle of law that has been enunciated is that plaintiff has the option to lead his entire evidence on all the issues, and in case, he intends to lead rebuttal evidence or answer the evidence that is to be led by the defendant, as regards the issues the onus of proof of which is upon the defendant, he shall have to reserve his right. Further, he shall have to exercise his option either when he closes his evidence in affirmative or in any case before the other party begins its evidence. But if he fails to reserve any such right, in terms of the provision of Order 18 Rule 3 CPC, his right to lead evidence in rebuttal would stand forfeited. Question No. 2 i.e. whether plaintiff can independently lead evidence in rebuttal over such issues, the onus of which is purely on the defendant? From a plain reading of the provisions of Order 18 Rule 3 CPC and the principle of law enunciated by the Division Bench in Surjit Singh's case (supra), it is axiomatic that in a case, where there are several issues, and the burden of proof some of which lies upon the defendant, plaintiff who is conscious to the lis and alive to the matter in issue, he can adduce his evidence in entirety vis-a-vis all the issues including those onus of proof of which is upon the defendant. Or having led the evidence in affirmative, as regards the issues, the onus of proof of which is upon the plaintiff himself, he can reserve his right to lead evidence in rebuttal. Needful to assert, leading evidence in rebuttal is also a part of the plaintiffs evidence. Whether he leads it in one go qua all the issues and close his evidence or reserve his right to lead rebuttal evidence. Question No. 3 i.e. whether Rule 3 of Order 18 of the Code if read in conjunction with Order 18 Rule 1 of the Code widens the scope of evidence in rebuttal? On a due and thoughtful consideration, we are of the view that the provision, which perhaps intended to be referred to by the learned Single Judge was Order 18 Rule 2 and not Order 18 Rule 1. As Order 18 Rule 1, only defines as to which of the parties has a right to begin first. Be that as it may. Provisions of Order 18 Rule 2 and Order 18 Rule 3 CPC are mutually exclusive and have their independent domains, and thus, operate in different situations. We deem it necessary to refer to the provision of Order 18 Rule 2 CPC, which reads as thus: "2. Be that as it may. Provisions of Order 18 Rule 2 and Order 18 Rule 3 CPC are mutually exclusive and have their independent domains, and thus, operate in different situations. We deem it necessary to refer to the provision of Order 18 Rule 2 CPC, which reads as thus: "2. Statement and production of evidence - (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. (2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole case." 6. Firstly, the difference one needs to bear in mind is that the provisions of Order 18 Rule 2 CPC do not contemplate a situation where there are several issues involved and the burden of proof some of which lies on the defendant. Rather, what the provision takes within its sweep is a situation where on the date fixed for hearing of the suit, the party having the right to begin shall state his case and lead evidence on the issues he is bound to prove. Ex facie, the provision only caters to a situation where the burden of proof of all the issues is upon the party beginning. Thereafter, the other party i.e. defendant shall state his case and produce his evidence (if any). Meaning thereby, the provision of Order 18 Rule 2(2) only postulates a right to the defendant to lead evidence in rebuttal to the evidence led by the plaintiff. The expression "if any" denotes rebuttal evidence by the defendant. The afore-reproduced provision does not contemplate a situation, where the burden of proof of some of the issues lies upon the defendant, and after he leads evidence on said issues, plaintiff would lead evidence in rebuttal. The expression "if any" denotes rebuttal evidence by the defendant. The afore-reproduced provision does not contemplate a situation, where the burden of proof of some of the issues lies upon the defendant, and after he leads evidence on said issues, plaintiff would lead evidence in rebuttal. Therefore, the expression, "and may then address the Court generally on the whole case." and the expression occurring in Order 18 Rule 2(3), "the party beginning may then reply generally on the whole case." only signify that after the defendant has led evidence (if any), he has a right to address and advance submissions on the whole case and likewise, the party beginning i.e. generally the plaintiff, would also have a right to advance submissions and respond to the case on the whole. Provisions of Order 18 Rule 2(3) cannot be construed or constructed to mean that after defendant had rendered his response to the whole case, plaintiff could still have a right to lead evidence in rebuttal. Such an interpretation or construction of the provision would be distorting the provision beyond its content. This perception and understanding further finds complete resonance in the provision of Order 18 Rule 3 CPC, as only the said provision deals with a situation where there are several issues and the burden of proof some of which lies upon the defendant. That is how, Division Bench in Surjit Singh's case (supra) interpreted Order 18 Rule 3, to determine the scope and ambit of the right of the plaintiff to lead evidence in rebuttal, on issues the onus of proof of which is on the plaintiff. Thus, both the aforesaid provisions cannot be read in conjunction but independently and in isolation, as regards the right of the party beginning to lead rebuttal evidence. In the wake of the position that has been sketched out above, we express our complete and respectful agreement with the principle of law enunciated by the Division Bench in Jaswant Kaur's case (supra) and Surjit Singh's case (supra). And also a Single Bench decision in National Fertilizers Limited's case (supra). Ratio of law laid down in the said decisions is not prone to any conceivable or inconceivable doubt and, therefore, do not require any reconsideration. Reference is answered, accordingly. Matter be now placed before the learned Single Judge for decision on merits.