Delhi High Court
Asha Srivastava vs Arun Srivastava & Ors on 20 November, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 20th November, 2019.
+ CS(OS) 270/2016
ASHA SRIVASTAVA ..... Plaintiff
Through: Mr. Neeraj Malhotra, Sr. Adv. with
Mr. Gagan Mathur & Ms. Cassandra
Zosangliani, Advs.
Versus
ARUN SRIVASTAVA & ORS. ..... Defendants
Through: Mr. Sanjay Poddar, Sr. Adv. with Mr.
Naman Tandon, Adv. for D-1&3.
Mr. Govind Kumar, Adv. for D-4.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.5768/2018 (of the plaintiff under Order XVIII Rule 3 CPC)
1. The senior counsel for the plaintiff and the senior counsel for the
defendants no.1 and 3 have been heard.
2. In this suit for partition, filed by the plaintiff on the premise of
intestacy of the common predecessor (deceased), the defendants no.1 and 3
in their written statement set up a document dated 2 nd February, 2002 as the
validly executed last Will of the deceased. The plaintiff, in her replication
to the written statement of defendants no.1 and 3, in paragraph 5 of the reply
on merits, pleaded illness and medical treatment of the deceased in the year
1999 and again in the year 2007.
3. On the aforesaid pleadings of the parties, the following issues were
framed on 25th April, 2017:
CS(OS) 270/2016 Page 1 of 6
"(i) Whether the document dated 2nd February, 2002 is the validly executed
last Will of the deceased Smt. Kaushalya Srivastava? OPD-1 to 5.
(ii) Whether Smt. Kaushalya Shrivastava was the owner of 1/5th share in plot
of land ad measuring 12500 sq. yds. known as Ajanta Cinema Complex,
Ajay Enclave Najafgarh Road, New Delhi as claimed by the plaintiff or the
owner of 1/5th of half share in the said land as contended by defendants
no.1 to 5? OPPr
(iii) Relief."
and the onus of the main issue being on the defendants no.1 and 3, the
defendants no.1 and 3 were ordered to lead evidence first.
4. The defendants no.1 and 3 led evidence. It is informed that the other
defendants did not lead any evidence. Thereafter the plaintiff led her
evidence and in which, according to the senior counsel for the defendants
no.1 and 3, the plaintiff also led evidence of alleged suspicious
circumstances surrounding the execution of the Will. The defendants no.1
and 3 thus sought to lead evidence in rebuttal of the evidence led by the
plaintiff, of alleged suspicious circumstances, and which was permitted by
the Commissioner to whom commission was issued for recording evidence,
inspite of objection of the counsel for the plaintiff.
5. The plaintiff immediately filed this application but during the
pendency of the said application, the defendants no.1 and 3 examined two
witnesses in their rebuttal evidence and on failure of the plaintiff to cross-
examine the said witnesses, their evidence was closed.
6. The senior counsel for the defendants no.1 and 3 has contended that
one of the witnesses examined in rebuttal evidence viz. Dr. O.P. Aggarwal
was in fact mentioned by the plaintiff in her list of witnesses but the plaintiff
CS(OS) 270/2016 Page 2 of 6
in her evidence did not examine him and the defendants no.1 and 3 in their
rebuttal evidence examined him. The other witness examined in rebuttal
evidence is informed to be an advocate who was examined qua issue no.(ii)
aforesaid. The senior counsel for the defendants no.1 and 3 further states
that one Dr. Ram Sharma examined by the plaintiff also in his evidence
deposed that Dr. O.P. Aggarwal was better qualified to depose.
7. The senior counsel for the plaintiff per contra has contended that since
the onus of issue no.(i) was on the defendants, the defendants, after the
evidence of the plaintiff, cannot lead any evidence in rebuttal.
8. I have considered the rival contentions.
9. Order XVIII Rule 3 of the CPC provides as under:
"ORDER XVIII
HEARING OF THE SUIT AND EXAMINATION OF WITNESSES
1. .......
2. ........
3. Evidence where several issues.-- Where there are several issues, the burden of
proving some of which lies on the other party, the party beginning may, at his
option, either produce his evidence on those issues or reserve it by way of
answer to the evidence produced by the other party; and, in the latter case, the
party beginning may produce evidence on those issues after the other party has
produced all his evidence, and the other party may then reply specially on the
evidence so produced by the party beginning; but the party beginning will then
be entitled to reply generally on the whole case."
10. Following the rule of procedure laid down in the aforesaid Rule, the
question of the defendants no.1 and 3 leading rebuttal evidence qua the
validity of the Will, onus whereof was on the defendants no.1 and 3 and / or
the defendants, does not arise.
CS(OS) 270/2016 Page 3 of 6
11. However issue no.(i) as framed is only qua valid execution of the Will
and not qua the other pleas in the replication of the plaintiff, to falsify the
Will. Ideally, a separate issue qua the said pleas should have been framed,
but was not framed. Had such an issue been framed, needless to state onus
thereof would have been on the plaintiff and then the defendants, who led
evidence first, would have had a right under Order XVIII Rule 3 of the CPC
to lead rebuttal evidence with respect thereto.
12. Only for the said reason, I am of the view that the defendants no.1 and
3 should be permitted to lead rebuttal evidence in the present case inasmuch
as the primary duty for framing the issues, though with the assistance of the
counsels, is of the Court and no party can be permitted to suffer owing to
mistake of the Court, in admitting which the Court has and should not have
any hesitation. However owing to such mistake as aforesaid, no injustice
can be caused to either of the parties.
13. The senior counsel for the plaintiff has referred to Surjit Singh Vs.
Jagtar Singh AIR 2007 P&H 1 in support of his contention but in view of
the peculiar circumstances aforesaid in the present case, the reasons
aforesaid have been given for permitting rebuttal evidence.
14. During the course of hearing, the effect of the plaintiff not cross-
examining the witnesses examined by the defendants in rebuttal has also
been considered, with the senior counsel for the defendants no.1 and 3
contending that the failure to cross-examine was not owing to the pendency
of the application but owing to the main counsel for the plaintiff not
appearing before the Commissioner on the subject date. I have considered
the said aspect also.
CS(OS) 270/2016 Page 4 of 6
15. The senior counsel for the plaintiff has read out from the proceedings
in the commission of the date when the witnesses in rebuttal were examined
and which show that the colleague of the main counsel for the plaintiff who
appeared before the Commissioner on the date when witnesses in rebuttal
were examined, raised the issue of pendency of the application. Thus
benefit of doubt has to be given to the plaintiff.
16. I therefore hold that the witnesses examined by the defendants in
rebuttal were validly examined. Though the plaintiff, in the absence of any
specific order from this Court, ought to have proceeded to cross-examine the
said witnesses notwithstanding the pendency of the application but it is
deemed appropriate to grant an opportunity to the plaintiff to now, if so
desires, cross-examine the said witnesses.
17. The application is disposed of in above terms.
18. Before proceeding further, a word of caution. The commission issued
for recording evidence, cannot adjudicate. Adjudicatory powers of the
Court were/are not delegated and cannot be delegated and once there was a
dispute, whether the defendants no.1 and 3 were entitled to lead rebuttal
evidence or not, the Commissioner was not authorized to allow or disallow
rebuttal evidence. The Commissioner, in doing so, exceeded his mandate.
CS(OS) 270/2016
19. The defendants are not willing to bear the fee of the commission to be
issued for recording cross-examination aforesaid, stating that in the earlier
round, the entire expenses were borne by the defendants.
CS(OS) 270/2016 Page 5 of 6
20. The counsel for the plaintiff states that the cross-examination be
recorded before the Joint Registrar.
21. The cross-examination of Dr. O.P. Aggarwal and Mr. Abhay Singh,
Advocate examined by the defendants no.1 and 3 be recorded before the
Joint Registrar.
22. List before the Joint Registrar on 2nd December, 2019 for scheduling
the dates for cross-examination of the said witnesses.
RAJIV SAHAI ENDLAW, J.
NOVEMBER 20, 2019
'gsr'
