- (1.) The petitioner-plaintiff (herein referred as, 'the petitioner') has invoked the provisions of Article 227 of the Constitution of India for setting aside the order dated 1.3.2011 (Annexure P3) passed by the trial court. There is a specific issue, the onus of which is upon the defendant, which reads as under :- "Whether the agreement in question is a forged and fabricated document OPD"
(2.) The onus to prove this issue was upon the defendant and the defendant in order to prove that the document is a forged and fabricated, had examined the Hand Writing and Finger Print Expert. At the time when the plaintiff was leading evidence, he never knew as to what evidence has to be led on the issue regarding forgery and fraud as alleged. But, after the evidence was led by the defendant on this issue, the plaintiff could be given right to lead evidence in rebuttal to the evidence led by the defendant over the issue, onus of which was upon the defendant. The learned counsel for the respondent has relied upon the judgment delivered in case Sardara Singh vs. Baljit Singh, 2010 2 RCR(Civ) 14, in order to contend that the petitioner has no right to lead evidence in rebuttal. The relevant part of the judgment delivered in Sardara Singh's case , reads as under :- "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 fail to lead evidence by way of examining a Hand Writing Finger Print Expert, in affirmative to prove the execution of 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 & others case a case decided by a Divison Bench of this Court, the principal 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, produce by the other parties." No matter, how liberally a provision in the statute is required by the interpreted, by interpretation it cannot be amended, while constructing 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 principal of law was laid down in Dinesh Kumar's and M/s Thind Traders's cases , 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 plainti s could be granted an opportunity to examine a Hand Writing and Finger Prints Expert to prove the execution of the agreement to sell, which they were required to examine by leading the evidence, in affirmative......"
(3.) There is no dispute with the proposition of law as discussed by the Division Bench of this Court in Sardara Singh's case . For further clarification, I may observe that the Division Bench of this Court in Sardara Singh's case was right in holding that when the onus to prove the execution, legality and validity of the document was upon the plaintiff and if he is given opportunity to lead evidence and he leads evidence, then he cannot lead any other evidence in rebuttal and he could lead evidence in rebuttal only on those issues, the onus of which was upon the defendant and his right cannot be curtailed to rebut the evidence led by the defendant over the said issue, the onus of which was upon him. Consequently, this court is of the considered opinion that the rights of the plaintiff cannot be curtailed to rebut the evidence on the issues, the onus of which was upon the defendant, when the defendant led evidence qua that issue.;