Jagat Jivan Pani vs Sarita Pani & Others .... Opposite
2025 Latest Caselaw 5885 Ori

Orissa High Court

Jagat Jivan Pani vs Sarita Pani & Others .... Opposite on 10 June, 2025

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

      IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR                   CMP No.1085 of 2024

         Jagat Jivan Pani               ....         Petitioner
                               Mr. S.K.Dash, Senior Advocate


                                 -Versus-


          Sarita Pani & others              ....       Opposite
                                                      Parties
                                     Mr. B.C. Panda, Advocate
              CORAM:
              JUSTICE R.K. PATTANAIK

               DATE OF JUDGMENT:10.06.2025


        1.

Instant petition is filed by the petitioner assailing the impugned order as at Annexure-5 passed in connection with the suit in CS No.111 of 2019 by learned Senior Civil Judge, Bhubaneswar, whereby, an application as per Annexure-3 seeking rebuttal evidence by him in the facts and circumstances of the case was declined on the grounds inter alia that such a decision is not in accordance with law, hence, to be interfered with and set aside in the interest of justice.

2. The petitioner, as plaintiff No.1A, moved an application as at Annexure-3 seeking leave of learned court below to adduce further evidence in rebuttal later to the examination of plaintiff No.2 as a witness from the side of the contesting defendant, which was opposed with an objection as per Annexure-4. The learned court below, however, held that same to be not necessary and was followed by the impugned order i.e. Annexure-5. According to learned court below, original plaintiff No.1, who was the father of the petitioner deposed in the suit, while he was alive and in the meantime, evidence from the side of the plaintiffs was closed and under such circumstances, when it is posted for argument, there is no reason to allow any such rebuttal evidence as the same is also not necessary to determine the real question in controversy between the parties. According to the petitioner, the impugned decision as per Annexure-5 does not stand to any good reason at all, inasmuch as, the scope of examination of a witness at any stage of the suit is never curtailed all the more when the same is in the nature of rebuttal evidence even though it is on the verge of disposal and therefore, learned court below erred in law in rejecting such a request while

disposing of Annexure-3, hence, the impugned order at Annexure-5 suffers from legal infirmity.

3. Heard Mr. Dash, learned counsel for the petitioner and Mr. Panda, learned counsel for the opposite parties.

4. In the suit, opposite party No.1 as sole defendant filed the WS, a copy of which is at Annexure-2. In fact, the suit is instituted by original plaintiff No.1 since deceased and opposite party No.2 against opposite party No.1 and proforma opposite party No.3 for a declaration that the gift deed dated 3rd February, 2017 executed in favour of opposite party No.1 to be illegal with such other reliefs as deemed fit and proper with costS being awarded. The crux of the dispute is over the alleged gift deed executed in favour of opposite party No.1 in 2017 with a plea by the plaintiffs that the same was managed under threat and coercion. The gift deed has been executed by the plaintiffs in favour of opposite party No.1 and the same is challenged with the allegation that it was never intended but was managed by playing fraud upon them. The petitioner is the son of the plaintiffs, whereas, opposite party No.1 and proforma opposite party No.3 are their daughters. In other words, the

alleged gift deed was executed by the parents in favour of one of the daughters, namely, opposite party No.1, who is the sole defendant in the suit. Though, the plaintiffs instituted the suit, opposite party No.2, namely, mother of opposite party No.1 and the petitioner switched her side and examined as a witness from the side of the defendant daughter. After such examination of opposite party No.2 as D.W.2 supporting the claim of opposite party No.1, the petitioner as the substituted plaintiff No.1A moved the application as per Annexure-3 to lead rebuttal evidence challenging the execution of the gift deed. However, as earlier stated, such an attempt of the petitioner was unsuccessful as the application i.e. Annexure-3 moved by him was disposed of followed by the impugned order dated 12th September, 2024 at Annexure-5. According to learned court below, the evidence is already closed from both the sides and original plaintiff No.1 since adduced evidence, the petitioner is not required to lead further evidence as the same is not necessary to determine the real issue involved between the parties.

5. Mr. Dash, learned counsel for the petitioner submits that the only possible plea to oppose the

request of the petitioner is that plaintiff No.2 was cross-examined by them and hence, there is no need to adduce rebuttal evidence but what has been elicited in cross-examination is in relation to her conduct or action while deposing in favour of the defendant, which is otherwise required to be substantiated by such further evidence. It is further contended that one more plea about the right of the petitioner to adduce further evidence would be in conflict with his predecessor-in-interest, namely, original plaintiff No.1 but the same is wholly misconceived. Considering the nature of evidence received from opposite party No.2, originally, plaintiff No.2 and since she deposed in favour of opposite party No.1, Mr. Dash, learned counsel submits that in the peculiar facts of the case, rebuttal evidence is necessary. It is claimed that opposite party No.2 was cross-examined by original plaintiff No.1 and was discharged and therefore, according to Mr. Dash, learned counsel, learned court below should have allowed such rebuttal evidence. It is also claimed that opposite party No.2 was examined as a witness for opposite party No.1 and peculiarly enough, she was cross- examined by her own engaged counsel and in the aforesaid backdrop, it is further submitted that the

petitioner, hence, sought for the leave to adduce rebuttal evidence limited to the facts and circumstances which compelled plaintiff No.2 to depose in favour of her adversary. The contention is that rebuttal evidence holds significant importance for several reasons and first and foremost is to serve the fundamental principle of fairness by enabling each party to respond to the evidence and arguments presented against each other and to ensure that all relevant information is brought to light and considered by a Court when reaching at a just decision and secondly, it plays a crucial role in testing the strength and validity of the opposing party's case and allowing the parties to introduce evidence that rebuts or undermines the credibility of the opponent's claims helps in uncovering inconsistencies, factual errors or misleading assertions and the process not only strengthens the evidentiary base of the presenting party but also aids the Court and distinguishing conflicting interpretations of events or legal standards, inasmuch as, such evidence contributes to the efficiency of the legal proceedings by promoting clarity and completeness in presentation of arguments and allows parties to address any unexpected developments or new

information that may arise during the course of the trial ensuring that all aspects of the case are thoroughly examined and deliberated upon. By highlighting the salient features vis-à-vis rebuttal evidence, Mr. Dash, learned counsel cited the following decisions, such as, K.K. Velusamy Vrs. N. Palanisamy (2011) 11 SCC 275; Prem Sagar Gupta (Deceased) through LRs Vrs. Smt. Kamlesh Kumari and another AIR 2004 DELHI 136 and Sultan Saleh Bin Omer Vrs. Vijayachand Sirimal, AIR 1966 AP 295 to contend that rebuttal evidence may be led at any stage of the suit even if it is posted for argument and in a peculiar situation, the same is absolutely necessary for the fact that plaintiff No.2 deposed in support of the sole defendant contrary to the stand while challenging the legality of the gift deed along with original plaintiff No.1. It is lastly contended that in view of the ratio laid down by the Apex Court in K.K. Velusamy (supra) and since the arguments have not been presented and evidence in regard to the conduct of opposite party No.2 is essential, learned court below could have exercised inherent jurisdiction under Section 151 CPC to permit the petitioner in production of such further evidence which is very much relevant and necessary but

instead, it has led to the passing of the impugned order at Annexure-5.

6. On the other hand, as earlier stated, opposite party No.1 vehemently challenged any further evidence to adduce in the suit at the behest of the petitioner and justified the impugned decision as per Annexure-5 concurring the view of learned court below that the same is not at all required to determine the real question in controversy. Mr. Panda, learned counsel for the opposite parties would submit that no further evidence is needed for the fact that original plaintiff No.1 led evidence against the execution of the gift deed and the same is sufficient enough and that apart, when plaintiff No.2 was cross-examined, when she deposed in favour of opposite party No.1 during the life time of original plaintiff No.1. In support of the contention advanced, Mr. Panda, learned counsel for the opposite parties refers to the following decisions, such as, Smt. Prativa Kar Vrs. Sri Ananda Chandra Das 2010 (Supp.-I) OLR 950 and Rajakishore Biswal Vrs. Mohan Charan Biswal and another 2015 (II) OLR 1104.

7. Interestingly enough, plaintiff No.2 in the suit has been examined as a witness for the sole defendant.

Such examination is perhaps after transposition of the said plaintiff as another defendant alongside opposite party No.1. If the claim of the petitioner is not incorrect, opposite party No.2 was cross-examined by original plaintiff No.1 and was discharged. It means when original plaintiff No.1 was alive, plaintiff No.2 switched over her side and supported the defendant daughter and even deposed in her favour examined as D.W.2. Till such time, even though the petitioner was substituted as plaintiff No.1A, he had not examined himself but after plaintiff No.2 crossed over the line and deposed as D.W.2, the petitioner moved the application for rebuttal evidence to examine him as a witness besides original plaintiff No.1. The challenge in the suit is over the alleged gift deed executed in favour of the defendant and as plaintiff No.2 favoured the defendant daughter and examined herself as a witness, the petitioner is said to have moved the application as per Annexure-3 for rebuttal evidence. Mr. Dash, learned counsel for the petitioner submits that the petitioner is not to adduce evidence inconsistent and in conflict with the testimony of original plaintiff No.1, rather, to challenge the hostile evidence of plaintiff No.2 examined as D.W.2 from the side of opposite party No.1, which in the special

facts and circumstances of the case, should have been allowed by learned court below.

8. No doubt the suit is at the stage of disposal as the parties are to present their respective arguments and in fact, there is no bar in demanding any such further evidence even after closure of evidence any time before the disposal of the suit but the request for the same is found to be relevant and required in the interest of justice. A Court has the authority to allow any such production of evidence subject to such terms as it may consider just and expedient. In Prem Sagar Gupta (supra), it has been held by the Delhi High Court that any such request for further evidence after closure of trial is not readily to be denied. In fact, it has been held therein that examination of any document after closure of evidence, though, it be before or during the hearing of the arguments does not amount to reopening of the trial, inasmuch as, rejection of a right of a party to produce evidence in rebuttal even on account of delayed application on the premise that the evidence is closed is negation of the right itself. In the decision (supra), it is also held that denial of such a right is not only infraction of legal right but also amounts to defeating the interest of

justice. The above decision was with reference to Order 18 Rule 3 CPC concerning evidence where several issues are involved and when a party has the option either to produce evidence on all such issues or reserve it by way of answer to the evidence to be led by the other parties.

9. In K.K. Velusamy (supra), a similar question arose for consideration, whether, further evidence should be allowed after closure of evidence before the argument presented and during such interregnum and observed in the following words:

"12. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for re-opening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or

some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under Section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose."

10. Reference has been made to Order 15 Rule 3 CPC in juxtaposition to Order 18 Rules 1 and 2 CPC and it is contended by Mr. Dash, learned counsel for the petitioner that since the hearing in the suit is not concluded, in such cases, either party is not precluded from leading further evidence and in that connection, the decision in Sultan Saleh Bin Omer (supra) is pressed into service, relevant extract of which, is reproduced herein below:

"17. A combined reading of all these provisions makes it abundantly clear that the Code has not provided for hearing of arguments as a distinct stage in the trial of the suit. On the other, hand, according to Order 15, Rule 3, the hearing of the suit includes both production of evidence as well as argument. It is in the

option of the parties to argue their case after the evidence in the suit is closed, and it is for them to decide whether they will exercise their privilege or not. In other words, once the trial of the suit is taken up and the examination of the witnesses has commenced, the hearing of the suit is said to begin; and that hearing comes to an end only with the delivery of the judgment, or when the suit is posted for judgment where it is reserved. In eases, therefore, where the suit has not been posted for judgment, but is posted for hearing arguments of one side or the other, it should be remembered that the hearing of the suit is not concluded, though the recording of evidence might have been finalized by both the parties. In such cases, either party is not precluded from making a request for examination of additional witnesses, or making documents, merely on the ground that the trial is closed and the matter is posted for arguments, whether the request should be granted or not, is however a matter to be decided on its merits, bearing in mind the fact that it is belated."

11. In the case at hand, at the cost of repetition, it is to be stated that the petitioner was not examined as a witness in the suit, whereas, original plaintiff No.1 cross-examined plaintiff No.2 after she deposed in favour of the defendant. Since, the suit was by the plaintiffs opposing the execution of the alleged gift deed in favour of the defendant, the petitioner even after being substituted after the death of original plaintiff No.1 continued with the suit and requested learned court below to adduce rebuttal evidence only after plaintiff No.2 was examined as a defendant's witness and therefore, the question is, whether, it should have been allowed by learned court below.

12. In Smt. Prativa Kar (supra), a decision cited by Mr. Panda, learned counsel for the opposite parties, it has been held that the suit was adjourned for argument and at that stage, the plaintiff moved an application to adduce evidence and this Court concluded that the name of the witness was not earlier furnished nor was the right to adduce further evidence was reserved after the evidence of the defendant was closed on any specific issue framed and therefore, in absence of any procedure prescribed to claim privilege to summon a witness is not

available. In the case of the petitioner, there was no such occasion for him at any earlier stage of the suit to examine himself as a witness and such a request was received only after the examination of plaintiff No.2 as D.W.2. In fact, from the objection filed by the defendant at Annexure-4 to the application of the petitioner, it is made to understand that plaintiff No.2 sought for withdrawal of the suit and instead was transposed and examined as D.W.2 with the claim that the intention is malafide since the application as per Annexure-3 was moved long after the demise of original plaintiff No.1 in 2021 but filed just after plaintiff No.2 adduced her evidence in the suit in support of the defendant. If such is the case, even though, the death of original plaintiff No.1 was in 2021, the petitioner moved the application for rebuttal evidence after plaintiff No.2 was examined supporting the defendant. Notwithstanding the fact that the evidence was concluded and the suit was ready for argument, the Court of the humble view that the petitioner ought to have been allowed a chance to lead rebuttal evidence to carry forward the mantle of original plaintiff No.1 questioning the alleged gift deed particularly on the anvil of the conduct of opposite party No.2. Such a situation was confronted

with in Smt. Prativa Kar (supra). As far as the other decision in Rajakishore Biswal (supra) is concerned, during the continuation of the evidence from side of the plaintiff, an application for further evidence was moved in terms of Order 18 Rule 3 CPC and since, it was declined, this Court held and concluded that learned court below committed patent error of law in denying the same specially when the evidence from the side of defendant was yet to commence. The above decisions are clearly distinguishable on facts. The petitioner even though sought for a leave to lead rebuttal evidence and it was with some amount of delay not immediately after death of original plaintiff No.1 but apparently, after examination of plaintiff No.2 as D.W.2, in such a peculiar situation, the Court is of the view that he should have been allowed to bring on record such rebuttal evidence with the exercise of jurisdiction under Section 151 CPC by learned court below. It is reiterated that any such conduct of a party during the hearing of the suit even when pending at the stage of argument may be a ground to allow the other side an opportunity for leading rebuttal evidence and necessarily for the said purpose, inherent power under Section 151 CPC is required to be exercised which is what has been held

by the Apex Court in K.K. Velusamy (supra). In Prem Sagar Gupta (supra), it is held that delay in making an application for further evidence even after closure of trial should be entertained when the other party can be burdened with cost since rejection of a right to adduce evidence in rebuttal on account of any such delay is to take away an invaluable right defeating the interest of justice and therefore, the conclusion of the Court is that even though there has been closure of evidence, the petitioner should have been allowed to lead rebuttal evidence especially after plaintiff No.2 was examined as D.W.2. In such a fact situation, the Court is of the humble view that to deal with the same, inherent jurisdiction under Section 151 CPC is required to be invoked but learned court below miserably failed to exercise the power, it is vested with. As a necessary corollary, the inevitable conclusion would be that the impugned decision as per Annexure-5 cannot be justified.

13. Hence, it is ordered.

14. In the result, the petition stands allowed. Consequently, the impugned order as at Annexure-5 passed in connection with CS No.111 of 2019 by learned Senior Civil Judge, Bhubaneswar is hereby

set aside with a direction to allow the petitioner in adducing rebuttal evidence in the suit, however, subject to cost of Rs.2000/- payable to opposite party No.1 only.

(R.K. Pattanaik) Judge

Tudu