Shri Naveen Gupta vs Shri Deepak Aggarwal
2014 Latest Caselaw 3061 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) 650/2014

%                                                    11th July , 2014

SHRI NAVEEN GUPTA                                         ......Petitioner
                          Through:       Mr. R.P. Lao, Advocate.



                          VERSUS

SHRI DEEPAK AGGARWAL                                        ...... Respondent
                 Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M. No.10913/2014 (exemption)

1.           Exemption allowed subject to just exceptions.

             C.M. stands disposed of.

+C.M. (M) No.650/2014 and C.M. No.10912/2014 (stay)

2.           This petition under Article 227 of the Constitution of India

impugns the order of the court below dated 17.5.2014 by which the

application filed by the petitioner/defendant/tenant in a suit for possession

and mesne profits at the stage of final arguments for leading additional

C.M.(M) No.650/2014                                                Page 1 of 3
 evidence has been dismissed.

3.           In the suit, the onus to prove the main issues was on the

defendant/petitioner, and after plaintiff led limited evidence in his

affirmative evidence, the case was fixed for evidence of defendant and

defendant examined seven witnesses. The plaintiff/respondent thereafter

examined three witnesses in rebuttal, and the case was thereafter listed for

final arguments.

4.           At this stage of final arguments, the subject application was

filed by the petitioner/defendant seeking to lead further evidence.

5.           I disagree with the argument urged by the counsel for the

petitioner/defendant that whatever evidence the petitioner wants to lead is

rebuttal evidence, inasmuch as, Order 18 Rule 3 of Code of Civil Procedure,

1908 (CPC) states that where there are various issues, onus to prove some of

which is on the plaintiff and onus of others is on the defendant, then when

the defendant leads evidence after the evidence of the plaintiff is completed

in affirmative, the defendant has to lead entire evidence not only with

respect to issues of which onus is upon him but also rebuttal evidence on

those issues onus of which is on the plaintiff. Once the plaintiff, after

evidence of the defendant, leads evidence in rebuttal, there is no provision in

law for the further so called rebuttal evidence by the defendant.
C.M.(M) No.650/2014                                                 Page 2 of 3
 6.           The court below has noticed that sufficient opportunities were

available to the petitioner/defendant for leading evidence, who led evidence

of as many as seven witnesses, and that at the stage of final arguments the

application seeking to lead evidence cannot be allowed once the evidence

which was sought to be led now was very much in the control, power and

possession of the petitioner/defendant at the time when the evidence of the

petitioner/defendant was led.

7.           In view of the above, I do not find any illegality in the order of

the court below, and therefore this petition is dismissed, leaving the parties

to bear their own costs.




JULY 11, 2014                                 VALMIKI J. MEHTA, J.

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