Punjab-Haryana High Court
Surinder Singh vs Amir Chand And Anr on 19 March, 2024
Author: Alka Sarin
Bench: Alka Sarin
2024:PHHC:039648
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
129 CR No.903 of 2024
Date of Decision : 19.03.2024
Surinder Singh ....Petitioner
VERSUS
Amir Chand and Another ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Varun Sharma Advocate for the petitioner.
ALKA SARIN, J. (Oral)
1. The present revision petition has been filed challenging the
order dated 08.01.2024 dismissing the application filed by plaintiff-
petitioner for demarcation of Khasra No.5//23/1 and 23/2 village Khusropur,
Hadbast No.246, Tehsil and District Jalandhar, Punjab.
2. The Trial Court vide the impugned order dated 08.01.2024
dismissed the application on the ground that the evidence now sought to be
led is in respect of issue No.1 onus of which was upon the plaintiff-
petitioner himself and despite availing numerous opportunities and
examining two witnesses in his evidence the plaintiff-petitioner is now
wanting to lead evidence in rebuttal in order to prove the said fact.
3. Learned counsel for the plaintiff-petitioner would contend that
the plaintiff-petitioner does not want to lead evidence in rebuttal, however, it
is simply an application for getting the area demarcated and hence the same
ought not to have been dismissed.
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4. Heard.
5. In the present case the plaintiff-petitioner filed a suit for
possession of the land measuring 04 marlas comprised in Khasra
Nos.5//23/1 and 23/2, Village Khusropur, Hadbast No.246, Tehsil and
District Jalandhar, as entered in Jamabandi for the year 2011-2012. It was
the case set up by the plaintiff-petitioner that he had purchased the suit
property vide sale deed dated 07.04.2011 bearing Vasika No.350 and was in
actual and physical possession of the property. It was further the case set up
that defendant-respondent No.1 had purchased the land measuring 05 marlas
140 sq. ft. comprised in Khasra Nos.2//26, 17/18/1, 24/2/1, 4//2/1, 5//18/1,
13/2, 14/1, 18/1 and 23/3 situated in Village Khusropur, Tehsil and District
Jalandhar from defendant-respondent No.2 and that they had encroached
upon the suit property taking advantage of absence of the plaintiff-petitioner.
The Trial Court on the basis of pleadings framed the following issues :
1. Whether the plaintiff is entitled to relief of
possession as prayed by him in the headnote of the
plaint ? OPP
2. Whether the plaintiff is entitled to relief of
permanent injunction as prayed by him in the headnote
of the plaint ? OPP
3. Whether suit filed by plaintiff is legally not
maintainable ? OPD
4. Whether the plaintiff has come to the court with
clean hands ? OPD
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5. Whether the plaintiff has got no cause of action and
locus standi to file the present suit ? OPD
6. Relief.
6. The onus of issue No.1 was on the plaintiff-petitioner. Despite
several opportunities the plaintiff-petitioner only examined 02 witnesses and
now at the stage of rebuttal evidence moved the present application for
demarcation of the land. The argument of learned counsel for the plaintiff-
petitioner that the application is not for leading evidence in rebuttal but is
only for demarcation of the land cannot be accepted. Merely by changing the
nomenclature the prayer in the application cannot be ignored. Infact, the
plaintiff-petitioner is wanting to lead evidence in rebuttal on issue No.1 onus
of which is on him.
7. A Division Bench of this Court in case of Surjit Singh & Ors.
vs. Jagtar Singh & Ors. [2007 (1) RCR (Civil) 537] has held as under :
"15. 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. 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
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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. 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
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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)."
8. In view of the above, I do not find any merits in the present
revision petition, which being devoid of any merits, is accordingly
dismissed. Pending applications, if any, also stand disposed off.
( ALKA SARIN )
19.03.2024 JUDGE
jk
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
integrity of this order/judgment
