Punjab-Haryana High Court
Joga Singh vs Jarnail Singh And Others on 6 March, 2024
Neutral Citation No:=2024:PHHC:033056
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
105 CR-5088-2019 (O&M)
Date of decision:06.03.2024
Joga Singh ... Petitioner
Vs.
Jarnail Singh & others ... Respondents
CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR.
Present: Mr. Manoj Khokhar, Advocate for the petitioner.
Mr. M.S. Dhami, Advocate for respondents No.1 and 2.
...
SUKHVINDER KAUR, J.
1. The instant revision petition has been filed by the
petitioner/defendant No.4 against the order dated 26.07.2019 passed by the
Additional Civil Judge (Sr. Division), Balachaur, District Shaheed Bhagat
Singh Nagar vide which the plaintiff has been allowed to examine PW5,
namely, Ram Nath in rebuttal evidence.
2. Brief facts that are relevant for adjudication of the present
revision petition are that the plaintiffs filed a suit for possession of the
property in dispute situated in village Sujjowal, Tehsil Balachaur,
(description of property given in plaint) against defendants No.1 to 3. The
present petitioner is defendant No.4 in the said suit. It has been alleged by
the plaintiffs that in the suit property, the plaintiffs had constructed a room.
Defendant No.1 - Joginder Singh approached the plaintiffs to rent out the
room for a few months. Accordingly, the plaintiffs allowed defendant No.1
to reside in the said room. Thereafter, defendants No.2 and 3, who were son
and daughter-in-law respectively of defendant No.1 also started residing
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there with him. As per the plaintiffs' version, in the first week of October,
2013, the plaintiffs asked them to hand over the possession of the said room
but defendants No.1 to 3 refused to pay any heed to their request. It has been
alleged that in the first week of October, 2013, defendant No.4 (petitioner
herein), who had his property situated in the northern side of the property in
dispute, had merged the same into his property by raising a wall and had
thereby taken illegal possession. Hence, the present suit was filed.
3. After issuing notice of the suit, defendants No.1 to 3 filed their
written statement. Besides, raising the objection regarding maintainability
also denied the material averments made in the suit. From the pleadings of
the parties, issues were framed vide order dated 09.10.2014. Thereafter, the
plaintiffs led their evidence and it was closed in affirmative on 18.01.2018.
4. On the other hand, defendants also led their evidence and it was
closed in affirmative on 22.07.2019 and on 24.07.2019, the matter was
adjourned by the trial Court for 26.07.2019 for addressing arguments.
However, on 26.07.2019, the plaintiff tendered an affidavit of PW5 Ram
Nath, who is a retired Kanungo and sought to examine the said witness in
rebuttal. The defendants raised a objection to the same. The said objection
was declined by the trial Court vide the impugned order dated 26.07.2019.
Aggrieved of the said order, the revision petitioner/defendant No.4 has
knocked the doors of this Court by way of the filing of the present revision
petition.
5. Learned counsel for the petitioner has argued that when the
plaintiffs have closed their evidence without reserving any right to lead
rebuttal evidence, they cannot be allowed to lead the evidence in rebuttal.
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Only two issues were framed and the onus of issue No.1 was upon the
plaintiffs and in support thereof, they led their evidence in affirmative. To
support his contention, learned counsel for the petitioner has placed reliance
upon a judgment of this Court rendered in Raj Kumari Vs. Surinder Singh
& others, 2012 (1) PLJ 396. He has further contended that the impugned
order passed by the trial Court allowing the rebuttal evidence to the
respondents/plaintiffs is contrary to the principles of law settled by a
Division Bench of this Court in Avtar Singh & another Vs. Baldev Singh
& others, 2015 (1) CCC 728 to the effect that in case the plaintiffs do not
reserve the right to lead the rebuttal evidence, their right to claim the said
benefit stands forfeited and the same cannot be allowed. Hence the
impugned order dated 26.07.2019 passed by the trial Court is contrary to the
settled principle of law settled in Avtar Singh's case (supra). He has argued
that in the light of Order 18 Rule 3 CPC, the plaintiffs have to reserve the
right to lead rebuttal evidence which the plaintiffs have not done and the
violation of this mandatory provisions has rendered the order dated
26.07.2019 passed by the trial Court to be illegal. He has further argued that
the plaintiffs did not examine PW5 Ram Nath in affirmative, even though
this evidence was well within their knowledge at that time. The plaintiffs
therefore did not exercise due diligence and hence, in view of the fact that
the onus of issue No.1 was upon the plaintiffs, the evidence was mandatorily
required to be led in affirmative.
6. On the other hand, learned counsel for the respondents/plaintiffs
has submitted that even if, the right to lead the rebuttal evidence was not
claimed at the time of closing the affirmative evidence, still keeping in view
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the facts and circumstances of the case, the same can be allowed by the
Court, which jurisdiction has been exercised by the trial Court in the facts
and circumstances of the present case, as the tenor of the impugned order
clearly shows that the said evidence is required for in order to come to a
correct decision. Hence, the Court was well within its jurisdiction to allow
the required evidence and the present revision petition deserved to be
dismissed.
7. I have heard learned counsel for the parties and perused the
record.
8. The first question which arises for the consideration of this
Court in the present civil revision petition is that when, once the
respondents/plaintiffs did not reserve their right to lead the rebuttal evidence
at the time of closing their affirmative evidence then whether, the plaintiffs
can be allowed to lead the rebuttal evidence or not. The law on the said
aspect is clear keeping in view the judgment of the Division Bench of this
Court in Avtar Singh's case (supra).
9. Learned counsel for the respondents/plaintiffs has not been able
to distinguish the case of the petitioner that the same is not covered in his
favour as per the judgment in Avtar Singh's case (supra). The other
argument which is being raised by the learned counsel for the
respondents/plaintiffs is that the tenor of the impugned order shows that the
said evidence is required for the proper adjudication of the case. In case, the
Court on its own require any evidence to be on record and in its wisdom
pass any appropriate order, the same will be within the jurisdiction of the
Court. But in the instant case, only two issues were framed. Onus to prove
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issue No.1 was upon the plaintiffs and to discharge the onus behind this
issue, they led their evidence in the affirmative, without reserving their right
to lead rebuttal evidence. Otherwise also, plaintiffs want to examine
Kanungo in rebuttal for proving the demarcation report. But as onus to prove
issue No.1 was upon the plaintiffs, so this witness could not be examined in
rebuttal evidence, after having led their evidence in the affirmative on the
issue the onus of which was on them.
10. Keeping in view the above, the impugned order dated
26.07.2019 (Annexure P-9) passed by the trial Court is not sustainable as per
law and is accordingly set aside. The present civil revision petition is
allowed in above terms.
11. All pending applications, if any, also stand disposed of
accordingly.
( SUKHVINDER KAUR )
06.03.2024 JUDGE
harjeet
1. Whether speaking/reasoned? Yes/No
2. Whether reportable? Yes/No
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