Research › Search › Judgment

Himachal Pradesh High Court · body

2005 DIGILAW 2 (HP)

KRISHAN LAL @ KRISHNU v. SUKH RAM

2005-01-04

A.K.GOEL

body2005
JUDGMENT Arun Kumar Goel, J.—Admitted facts giving rise to this case are, that a suit was filed by respondents Bhag Singh, Hira Singh, Sundri Devi and Kamla Devi against Sunder. This suit was for possession of land as detailed in the plaint. After framing of issues, plaintiffs tendered evidence by way of documents in the affirmative and reserved their right to lead evidence in rebuttal. Impugned order shows that after number of opportunities for leading such evidence, defendant admittedly did not lead any evidence. Finally by order of the Court defendants evidence was closed. 2. It may be appropriate to notice here that onus to prove issues No. 1 to 3 was on the plaintiffs, whereas of 4 to 7, was on defendant. In the absence of any evidence having been led by the defendant, plaintiffs started leading evidence in rebuttal. This was objected to by the defendant. This objection was over-ruled and consequently plaintiffs were allowed to lead evidence in rebuttal. It is against this order that present petition has been filed. 3. In this background, before dealing with respective contentions urged on behalf of the parties, legal position needs to be noted. 4. Order XVIII of the Code of Civil Procedure deals with the manner in which evidence is to be led by the parties. To be precise, Order XVIII Rule 3 CPC deals with such a situation. Reading of this rule clearly suggests that it is the plaintiff who has to lead evidence first in respect of issues onus to prove whereof is upon him. Thereafter defendant is to lead his evidence to controvert the evidence of the plaintiff, as well as on such issues, onus to prove whereof is on him (defendant). It is only thereafter that the plaintiff has a right to lead evidence in rebuttal on such issues, onus whereof was upon the defendant. 5. Admittedly, defendant in this case has not led any evidence so far issues No. 4 to 7 are concerned. This factual aspect of the case was not disputed on behalf of the plaintiffs. Thus, the only question that remains to be examined in this petition is, whether the plaintiff have still any right to lead evidence. For the reasons to be recorded hereinafter, answer would be no. 6. Dr. This factual aspect of the case was not disputed on behalf of the plaintiffs. Thus, the only question that remains to be examined in this petition is, whether the plaintiff have still any right to lead evidence. For the reasons to be recorded hereinafter, answer would be no. 6. Dr. Parmar on behalf of the plaintiffs forcefully urged that rules of procedure are meant to advance the cause of justice and not to thwart the same. According to him, procedural law is further meant to do substantial justice between the parties and for setting the controversy at rest between them. Alternatively he urged, that where no specific provision is there in law, Court in a given case like the present one is not precluded from laying down the law. 7. All these pleas were controverted by learned Senior Counsel appearing for the defendant. According to him, so far this case is concerned, it is within very narrow compass. Admittedly, his client did not lead any evidence, therefore, there is no question of rebuttal evidence being examined by the plaintiffs. As according to him, question of rebuttal would be limited to rebut the evidence if any, of the defendant and not otherwise. 8. What is the purpose of leading rebuttal evidence. In my considered view, it is only meant to controvert and rebut the evidence of the opponent, defendant in the present case. What is to be rebutted when there is no evidence led by the opposite party, like defendant in this case. Learned Counsel for the plaintiffs could not satisfy the Court, except persisting with vehemence that Court is not precluded from laying down the law. Therefore, the impugned order does not suffer from any infirmity. With a view to support his this submission, he placed reliance on a decision of Jammu and Kashmir High Court in State of Jammu and Kashmir v. Haji Ghulam Nabi, AIR 1969 Jammu and Kashmir 124. 9. After having gone through this decision, with respect I have not been able to persuade myself to accept the view propounded in this judgement. 10. So far laying down of law in the absence of specific provision is concerned, again this submission of learned Counsel cannot be accepted. Reason being, that Order XVIII Rule 3 CPC is a specific provision dealing with the manner in which evidence is to be examined by the parties. 10. So far laying down of law in the absence of specific provision is concerned, again this submission of learned Counsel cannot be accepted. Reason being, that Order XVIII Rule 3 CPC is a specific provision dealing with the manner in which evidence is to be examined by the parties. For ready reference this provision is extracted hereinbelow:— "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." 11. No doubt rules of procedure are meant to advance the cause of justice with a view to set the controversy at rest between the parties. Suffice it to say in this behalf that justice is not to be done to one party, but it has to be administered evenly to both of them. In the peculiar facts and circumstances of this case, plea urged by Dr. Parmar in this behalf is also misconceived. 12. This Court is alive to the situation that every error, illegality or otherwise, is not to be corrected while exercising powers under Article 227 of the Constitution of India. At the same time, Court will be failing in its duty when in a given situation it does not exercise its authority under this Article, with a view to keep the Courts subordinate to the High Court within the bounds of its limits. This is a fit case for exercise of such powers on the facts which are peculiar to this case. 13. No other point is urged. 14. In view of aforesaid discussion, this petition deserves to be allowed and it is ordered accordingly. This is a fit case for exercise of such powers on the facts which are peculiar to this case. 13. No other point is urged. 14. In view of aforesaid discussion, this petition deserves to be allowed and it is ordered accordingly. As a result of it, order dated 23.8.2004, passed by learned Civil Judge (Junior Division), Bilaspur in CS No. 139/1 of 1997, titled Bhag Singh and others v. Sunder, is hereby quashed and set aside and plea of the defendant objecting to the right of the plaintiffs to lead evidence in rebuttal after his (defendants) evidence was closed, is upheld. Trial Court is now directed to proceed further with utmost expedition and despatch for final disposal of the case after hearing the parties as per law. Costs on the parties. 15. Registry is directed to send a copy of this order to the trial Court for compliance at its end. After copy is sent to the trial Court, urgent copy of this order will be made available to the learned Counsel for the parties within one week. CMP No. 440 of 2004 . 16. In view of the disposal of the main matter, ex-parte ad-interim order dated 1.9.2004, shall stand vacated forthwith. Consequently, this application is also disposed of. Petition disposed of.