- (1.) PETITIONER has filed this petition challenging the order dated 16.01.2014 (Annexure P -4), whereby application moved by the petitioner for comparison of signatures of deceased Kedar Nath on the agreement dated 02.02.2005 with his admitted signatures, was dismissed.
(2.) LEARNED counsel for the petitioner has submitted that agreement to sell dated 02.02.2005 was executed by Kedar Nath in favour of the petitioner. Kedar Nath died on 14.02.2006. Consequently, sale deed could not be executed in favour of the petitioner by Kedar Nath and petitioner preferred a suit for possession by way of specific performance of agreement to sell dated 02.05.2005. Legal heirs of Kedar Nath had denied the signatures of Kedar Nath on agreement to sell in question. Hence, it was very necessary to get the signatures of deceased Kedar Nath on agreement to sell in question compared with his admitted signatures.
(3.) IN the present case, petitioner has filed suit for possession by way of specific performance of agreement to sell dated 02.02.2005. Now the case is listed before the trial court for rebuttal evidence of the petitioner, if any and arguments. At this stage, application was moved by the petitioner for comparison of signatures of deceased Kedar Nath on the agreement to sell in question with his admitted signatures. Petitioner was required to prove the agreement to sell in question while leading his evidence in the affirmative, as the onus to prove the agreement to sell in question was on the petitioner. Issue No.1 as reproduced in the grounds of petition reads as under: - "Wehther the deceased Kedar Nath executed agreement to sell in favour of plaintiff for a consideration of Rs.3,00,000/ - on 2.2.05 and received entire sale consideration? OPP Petitioner could not be allowed to lead evidence in his rebuttal qua issue No.1 as the onus to prove issue No.1 was on the petitioner and he was required to lead evidence qua the said issue while leading his evidence in the affirmative. This Court in Jagdev Singh and others vs. Darshan Singh and others, 2007 1 RCR(Civ) 794, has held 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. vs. Jagtar Singh and ors., 2007 1 RCR(Civ) 537 . 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 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 V/S DEVINDER SINGH, 1983 AIR(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 V/S BACHAN KAUR, 2000 2 RCR(Civ) 133 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 . 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, BATALA V/S M S T C LIMITED, 2002 130 PunLR 99 . 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 . 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 and R.N. Mittal, J. in NATIONAL FERTILIZERS LIMITED V/S MUNICIPAL COMMITTEE, BHATINDA, 1982 AIR(P&H) 432.";