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2005 DIGILAW 2506 (RAJ)

Roshan Lal v. Bhanwar Lal

2005-09-19

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the petitioners. 2. According to learned Counsel for the petitioners, the trial Court framed the issues on 210.1998. The plaintiff produced his evidence and, thereafter, additional issue was framed by the trial Court on 21.03.2003. In the garb of evidence of newly framed issue the plaintiff submitted affidavit to prove the issues which were framed earlier. According to learned Counsel for the petitioners, the evidence of the plaintiff to prove the issues which were framed on 210.1998, since was closed and after framing of the issue by order of the trial Court dated 21.03.2003 the plaintiff was entitled to produce evidence only to prove the issue, burden of which was upon the plaintiff . According to learned Counsel for the petitioners, a bare perusal of the affidavit of the plaintiff and his witnesses clearly proves that plaintiff gave evidence with respect to the original issues. It is also submitted that even in the garb of the rebuttal, the plaintiff could not have produced the evidence, which he has produced and that has been done only because of framing of the new issues. 3. Learned Counsel for the petitioners vehemently submitted that the trial Court by impugned order dated 01.09.2005 has taken on record the evidence of the plaintiff . It is also submitted that by the impugned order the trial Court allowed the plaintiff to give evidence in rebuttal to all the evidence of the defendant, whereas the plaintiff did not have any right to produce evidence in rebuttal. It is also submitted that even if any permission to produce evidence in rebuttal could have been given then that could have been given only to rebut evidence on the issues, burden of which was upon the defendant. 4. I considered the submissions of learned Counsel for the petitioners and perused the impugned order. The trial Court observed that because of the fact that issues framed on 210.1998, the burden to prove Issue No. 4 is upon the defendant and burden to prove two issues framed on 21.03.2002, is upon the defendant and all the issues are so mixed that there is somewhere inter-connection with other issues. However, the trial Court observed that plaintiff has right to give evidence on issues, on burden of which is upon the defendant. However, the trial Court observed that plaintiff has right to give evidence on issues, on burden of which is upon the defendant. In view of this, at this stage it cannot be found out from the evidence that the evidence is on which of the issue. Obviously, reason is that at this stage evidence cannot be accepted or rejected. The trial Court also observed that evidence of the plaintiff was closed on 210.1999, but it does not mean that the plaintiff lost his right to give evidence on issues, which were framed on 21.03.2002. The trial Court also observed that two orders dated 210.1999 and 21.03.2002 cannot be required to be read together to find out correct meaning and from both the orders, it is clear that by none of the orders, the plaintiff has been given permission to lead fresh evidence on all the issues. The trial Court further observed that plaintiff can produce the evidence only to rebut the evidence of the defendant. The last line of the order say that plaintiff shall give evidence with respect to all the evidence of the defendant, which is required to be read in the context in which it was written and not by taking it out of the context referred above. 5. Looking to the observation of the Court below that because of the nature of the issues at this stage, it cannot be out that which of the evidence is relating to which issue, looking to the burden placed upon the parties, the trial Court deferred the decision about the admissibility of the evidence and that was done by the trial Court within its jurisdiction, as it would not have been appropriate for the trial Court to bifurcate the evidence from the affidavit by examining the merit of the case and that too without for the purpose of deciding any of the issue. Since the evidence are submitted in the trial Court in the form of the affidavits. One of the natural consequences is deffering the objection about the admissibility of the evidence. In view of the above, the petitioner is not going to suffer adversely by the impugned order as the trial Court will examine the evidence at subsequent stage while deciding the suit. Therefore, this Court is not inclined to interfere in the impugned order. 6. One of the natural consequences is deffering the objection about the admissibility of the evidence. In view of the above, the petitioner is not going to suffer adversely by the impugned order as the trial Court will examine the evidence at subsequent stage while deciding the suit. Therefore, this Court is not inclined to interfere in the impugned order. 6. Learned Counsel for the petitioner submitted that plaintiff did not reserved any right in rebuttal, therefore, in view of , Kalyan Dass vs. Kishan Karan, reported in 1978 WLN Page 83, since the plaintiff having failed to reserve his right of leading evidence in rebuttal, he is not entitled now to lead any further evidence and, therefore, the trial Court committed illegality in allowing the plaintiff to produce evidence in rebuttal. It is clear from the facts mentioned above itself that the trial Court has not decided whether the evidence of the plaintiff is on the issues framed subsequently and burden of which is upon the plaintiff or the evidence is in rebuttal and further more if the trial Court will consider the evidence of the plaintiff in rebuttal in violation to the Judgment of this Court delivered in the case of Kalyan Das (Supra), the petitioner will be free to challenge the trial Courts Judgment and order in appeal, where appellate Court can re-examine the matter relating to right of parties for leading evidence and to find out whether the evidence was produced in rebuttal without permission or was the evidence produced on the issues framed subsequently. 7. Therefore, this Court is not inclined to interfere in the impugned order. Hence, the writ petition is dismissed.