Punit Miglani vs Ranjit Singh Khurana
2022 Latest Caselaw 15908 P&H

365

      IN THE HIGH COURT OF PUNJAB & HARYANA
                   AT CHANDIGARH


                                          CR No.3420 of 2022 (O&M)
                                          Date of Decision: 06.12.2022


Punit Miglani
                                                              ..... Petitioner

                                 Versus

Ranjit Singh Khurana and others
                                                            ..... Respondents


CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL

Present:    Mr. Mahir Sood, Advocate
            for the petitioner.

            Mr. Maninder S. Saini, Advocate
            for respondent No.1.

            Mr. Avtar S. Khinda, Advocate
            for respondent No.3.
                   ******

MANJARI NEHRU KAUL J. (Oral)

CM No.10536-CII of 2022

Application is allowed as prayed for.

CR No.3420 of 2022 (O&M)

Mr. Avtar S. Khinda, Advocate has appeared and filed his

power of attorney on behalf of respondent No.3 today in the Court and

the same is taken on record.

The petitioner-plaintiff has filed the present petition under

Article 227 of the Constitution of India for impugning the order dated

17.08.2022 (Annexure P-1) passed by the learned Civil Judge (Junior

Division), Phagwara.

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Learned counsel for the petitioner inter alia contends that

respondent No.3 during the course of his cross-examination, deposed

that two firms namely, Somsons Export and Upkar Diesel Spares were

being run on the suit property. It was submitted that the above-said

facts came to light for the first time during his cross-examination as the

same were neither pleaded in the original written statement nor in the

amended written statement. Therefore, to rebut the said facts, it was

necessary to examine the clerk of VAT (Excise and Taxation)

Department, failing which, the petitioner would suffer from irreparable

loss. Learned counsel further contended that the trial Court had failed

to appreciate that the counsel for the petitioner had closed the evidence

in the affirmative on behalf of the plaintiff and thus, in the

circumstances, the petitioner could not be denied the opportunity to

lead evidence in rebuttal, more so, when the onus of proof qua issue

No.5 was put on the respondents. In support thereof, reliance was

placed upon a judgment of this Court passed in "Jaswinder Kaur and

another vs. Devinder Singh and others", 1983 (2) RCR (Rent) 57.

Per contra, learned counsel appearing for respondent No.3

has vehemently controverted the submissions made by the counsel

opposite by urging that the onus to prove issue No.2 qua adverse

possession was on the petitioner, therefore, it was for him to lead

evidence in the affirmative to prove his case and no opportunity to lead

evidence in rebuttal could be granted to him. It was further contended

that even otherwise the petitioner had not reserved his right to lead

evidence in rebuttal, therefore, the trial Court could not be faulted with,

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for passing the impugned order.

I have heard learned counsel for the parties and perused the

relevant material on record.

At the outset, it would be relevant to observe here that a

party cannot be allowed to lead evidence in rebuttal unless it reserves

its right in the said regard while closing its evidence in the affirmative

or at any time before the commencement of the evidence of the opposite

party. Still further, evidence in rebuttal can be led only qua those

issues, whose burden of proof is on the opposite party.

Adverting to the case in hand, it is a matter of record that

the petitioner did not reserve his right to lead evidence in rebuttal either

at the time of closing his evidence in affirmative or prior to

commencement of the evidence of the defendants. The case law relied

upon by learned counsel would not come to his rescue as in the instant

case, there was no statement made by learned counsel for the petitioner

to the effect that he was closing the evidence on behalf of the petitioner

in affirmative "only".

This Court further concurs with the submissions made by

the learned counsel for the respondents that since the onus to prove

issue No.2 was on the petitioner, he could not seek to lead evidence in

rebuttal qua the same. It was incumbent upon the petitioner to lead

evidence in the affirmative to substantiate his plea of adverse

possession. He cannot be permitted to do the same at this stage by

leading evidence in rebuttal. Furthermore, merely because the case was

fixed for "rebuttal evidence, or for arguments" by the trial Court, it

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would not by itself confer the right upon the petitioner to lead evidence

in rebuttal.

As a sequel to the above, the instant petition being devoid

of any merit is dismissed.

The trial Court is directed to proceed with the trial as per

the directions given by this Court in CR No.1335 of 2022 vide order

dated 19.04.2022.

                                             (MANJARI NEHRU KAUL)
                                                     JUDGE
06.12.2022
rittu
               Whether speaking/reasoned:              Yes/No
               Whether reportable:                     Yes/No




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