Bombay High Court
Tushar S/O Vilas Mehere vs Mrs. Pragati W/O Tushar Mehere And ... on 12 April, 2017
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No. 531 of 2016
Petitioner : Tushar son of Vilas Mehere, aged about 38
years, Occ: service, resident of 18212 NE
91st Street, Redmond, Washington 98052
(USA), c/o Mrs Nirmal Mehere, A-1, Kanchan
Geet Apartments, 57, Shivaji Nagar, Nagpur
versus
Respondents : 1) Pragati w/o Tushar Mehere, aged about
34 years, Occ: service, resident of 44, Padole
Layout, Dindayal Nagar, Parsodi Ring Road,
Nagpur-22
2) Ms Alisha d/o Tushar Mehere, aged
about 11 years, Minor, through natural
guardian-mother - respondent no. 1
Ms Jyoti D. Dharmadhikari, Advocate for petitioner
Ms S. D. Anjankar, Advocate for respondents
Coram : S. B. Shukre, J
Dated : 12th April 2017
Oral Judgment
1. Rule. Heard forthwith by consent of parties.
2. By the impugned order dated 8.6.2016, the Family Court has
allowed the respondent-wife to lead evidence in rebuttal after completion of
evidence of the petitioner-husband.
3. According to learned counsel for the petitioner-husband, the order
impugned amounts to giving blanket permission to the respondent-wife to lead
evidence in rebuttal disregarding settled position of law that a party cannot be
allowed to lead such evidence in which onus of proof is on that party and not on
the other party. Reliance has been placed on Surjit Singh & ors v. Jagtar
Singh & ors reported in AIR 2007 Punjab And Haryana 1. Learned counsel for
the respondent-wife submits that of all the issues framed, only one issue
relating to maintenance, burden of proof lies on the respondent-wife and,
therefore, barring this issue, the respondent-wife could be permitted to lead
evidence in rebuttal.
4. In the case of Surjit Singh & ors v. Jagtar Singh & ors (supra), it
has been held that plaintiff cannot lead evidence in rebuttal on issues in which
onus of proof is on plaintiff and not on defendant. In view of the divergent
views expressed in some single Bench decisions on interpretation of Order 18,
Rule 3 of the Code of Civil Procedure, the Division Bench of P & H High Court,
on reference, was considering the scope and ambit of the right of plaintiff to
lead evidence in rebuttal on issues the onus of proof of which is on the plaintiff.
Same view is taken by the Orissa High Court in Prahallad Agarwalla v. Bijay
Shankar Chandgotia reported in 2010 (1) Civil LJ 438 and Rajasthan high
Court in L.M.P. Precession Engineer Co. (P) Ltd. v. Ram Narayan reported in
AIR 2004 Rajasthan 37.
5. So, the law is clear. No party can be permitted to lead
evidence in rebuttal on issues in which onus of proof is on that party and
not on the other. The impugned order, however, as rightly submitted by
learned counsel for the petitioner, gives a blanket permission without
qualifying anything in the context of onus of proof. Therefore, I am of the
view that the impugned order needs to be clarified accordingly by partly
allowing this petition.
6. Writ Petition is partly allowed. It is clarified that permission
given by the trial Court vide order dated 8.6.2016 to the respondent-wife
to lead evidence in rebuttal after completion of evidence of the petitioner-
husband shall be the permission only on the issues in which the onus of
proof is on the petitioner-husband and not on the respondent-wife.
Rule is made absolute in the above terms.
S. B. SHUKRE, J
joshi
