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2009 DIGILAW 703 (PNJ)

Pawan Kumar v. Surinder Pal

2009-04-17

RAJESH BINDAL

body2009
Judgment Rajesh Bindal, J. 1. The plaintiff has approached this Court challenging the orders dated 11.12.2008 and 17.2.2009, passed by the learned court below, whereby the prayer of the petitioner-plaintiff for permitting him to lead evidence in rebuttal on the issues, the onus of which was on the respondents- defendants, has been dismissed. 2. Briefly, the facts are that the petitioner-plaintiff filed a suit for possession by way of specific performance of agreement to sell against the respondents-defendants, in which three issues were framed. The onus of issue No. 1 was on the plaintiff, whereas for issues No. 2 and 3, the onus was on the respondents-defendants. The plaintiff closed his evidence. Thereafter, the respondents-defendants led their evidence in defence and also in affirmative on the issues, the onus whereof was on them. It was at this stage that the petitioner plaintiff requested the court to permit him to lead evidence in rebuttal on the issues, the onus of which was on the respondents-defendants. The prayer was rejected by the learned trial court vide order dated 11.12.2008. Review of the order was sought, which was also rejected vide order dated 17.2.2009. It is these orders, which are impugned before this Court. 3. Mr. Arun Jain, learned senior counsel appearing for the petitioner submitted that the petitioner-plaintiff is entitled to lead evidence in rebuttal on the issues, the onus of which is on the respondents-defendants. The same can be done only after the respondents-defendants lead evidence in affirmative on those issues. At the initial stage, the petitioner-plaintiff could not lead any evidence in defence in anticipation of the evidence to be led by the respondents-defendants on those issues. Further, the cause of action or reason to the petitioner-plaintiff to lead evidence in rebuttal would arise only after the respondents-defendants lead evidence in affirmative on the issues, the onus of which is on them, otherwise there is no need even to lead any evidence in rebuttal. Reliance was placed upon Kewal Singh v. Jagjit Singh, 2007(4) Civil Court Cases 658 (P&H) : 2007(4) (Civil) 631 and Ranjit Singh v. Mehfil Restaurant, 2008 (2) Civil Court Cases 225 (P&H) : (2008-1) 149 PLR 674. 4. On the other hand, learned counsel for the respondents submitted that while leading evidence on issue No. 1, the onus of which was on the petitioner plaintiff, he had not reserved his right to lead evidence in rebuttal. 4. On the other hand, learned counsel for the respondents submitted that while leading evidence on issue No. 1, the onus of which was on the petitioner plaintiff, he had not reserved his right to lead evidence in rebuttal. In fact, the entire dispute revolves around the agreement to sell projected by the petitioner plaintiff. The stand of the respondents-defendants from the very beginning is that the same is forged and fabricated document and keeping that in view, the petitioner was required to lead his entire evidence in one go and in fact, the evidence, which is now sought to be led in the form of expert witness, was required to be led at the initial stage while leading evidence on issue No. 1, the onus of which is on the petitioner-plaintiff. Reliance was placed upon Tejinder Kaur v. Krishan Singh and others, 2008(1) Civil Court Cases 813 (P&H). 5. Heard learned counsel for the parties and perused the paper book. 6. In the suit for possession by way of specific performance of agreement to sell filed by the petitioner-plaintiff, the learned trial court vide order dated 20.11.1999 framed the following issues : "1. Whether the plaintiff is entitled to injunction and possession as prayed for ? OPP 2. Whether agreement dated 20.2.1998 is false and fabricated ? OPD 3. Whether the plaintiff has no cause of action to file the present suit ? OPD 4. Relief." 7. A perusal of the aforesaid issues shows that onus of issue No. 1 was on the petitioner-plaintiff, whereas for issues No. 2 and 3, the onus was on the respondents-defendants. The respondents-defendants were to prove the stand taken by them in the written statement to the effect that agreement to sell dated 20.2.1998 is false and fabricated document and further the plaintiff had no cause of action to file the suit. It is in discharge of the onus put on the respondents-defendants to prove that the alleged agreement to sell dated 20.2.1998 is false and fabricated, the defendants led evidence in affirmative by producing report of an expert witness. It is at that stage that the petitioner-plaintiff sought opportunity to rebut that evidence. In the evidence initially led by the petitioner-plaintiff, he had proved on record the agreement to sell. It is at that stage that the petitioner-plaintiff sought opportunity to rebut that evidence. In the evidence initially led by the petitioner-plaintiff, he had proved on record the agreement to sell. The cause of action to lead evidence in rebuttal will arise to the petitioner-plaintiff only if the respondents-defendants lead any evidence in affirmative on an issue, the onus of which is on them. In case, no evidence is led by the respondents-defendants, there is no requirement for the petitioner-plaintiff to rebut anything. The plaintiff cannot pre-suppose and lead evidence at the initial stage in anticipation of the evidence to be led by the respondents-defendants. The stand of learned counsel for the respondents defendants that it was incumbent on the petitioner-plaintiff to have produced the expert witness at the initial stage, considering the stand of the respondents defendants in the written statement that the alleged agreement was a forged and fabricated document, has no legs to stand, as the issues were framed by the learned trial court considering the pleadings of the parties and the onus was put accordingly. Unless a party leads evidence in support of the plea raised by him in terms of the onus put on him as per the issues framed, no evidence in defence can possibly by led. 8. A similar issue was considered by this Court in 2008(2) Civil Court Cases 274 (P&H) : Civil Revision No. 4087 of 2006 Jai Narain v. Satya Narain and others decided on 27.08.2007. The relevant part thereof is extracted below : "In Naranjan Singh v. Ajaib Singh and another, 2006 (1) PLR 789, this Court while considering a similar issue held that by fiction of law, the defendant is to be treated as plaintiff for the issues, the onus of which is on him and the plaintiff has right to rebut the evidence led by the defendants on those issues and there is no requirement of any law that the plaintiff is required to even reserve his right to controvert the evidence of defendants. The issue has also been gone into by the Rajasthan High Court in L.M.P. Precession Engineering Co. The issue has also been gone into by the Rajasthan High Court in L.M.P. Precession Engineering Co. (P) Ltd. v. Ram Narayan, AIR 2004 (1) Civil Court Cases 429 (Rajasthan) : AIR 2004 Rajasthan 37, wherein it was held that in a suit where a number of issues are framed and the onus thereof is on either party and in case while discharging his onus on certain issues, the plaintiff touches some issues, the onus whereof is on the defendants, it cannot be said that plaintiff has led his evidence on those issues, thereby depriving him to lead evidence in rebuttal. Each case has to be considered on its own facts. The relevant extract of the judgment in L.M.P. Precession Engineering Co. (P) Ltd.s case (supra) is as under : "It will be worthwhile to mention here that the trial Court framed total six issues and burden o prove two issues was upon the plaintiff, which are (i) whether the Court has jurisdiction to hear the suit and another is (ii) whether the plaintiff is entitled for decree of rendition of account against the defendant. A bare perusal of the averments made in the plaint and particularly the relief claimed by the plaintiff in the suit, it is clear that the entire relief of the plaintiff is only that the plaintiff is entitled for the decree for rendition of account against the defendant and consequently, the plaintiff is entitled for the amount, which is found due in the defendant of the plaintiff. This issue covers the entire suit itself, which includes all the facts mentioned in the plaint on the basis of which plaintiff becomes entitled to relief. It appears from the detail evidence of the plaintiff that the plaintiff led evidence in detail to prove this issue and in that sequence he narrated the entire sequence on the basis of which the plaintiff is claiming the relief against the defendant. It appears from the detail evidence of the plaintiff that the plaintiff led evidence in detail to prove this issue and in that sequence he narrated the entire sequence on the basis of which the plaintiff is claiming the relief against the defendant. When such a situation arises where there are two sets of issues; one putting burden upon the plaintiff to prove the issue and another putting burden upon the defendant and in that situation, if some of the subjects required to be covered to prove issue by the plaintiff by giving evidence or even for the purpose of making the evidence clear so that the case may be well understood by the court and to make the things clear, if plaintiff leads evidence to prove his case, in all those cases, it is not possible to hold that the plaintiff has touched the issues, burden of which was upon the defendant. It depends upon the facts of each case. The proving of an issue by the defendant depends upon the specific plea taken in defence by the defendant and that burden can be discharged by the defendant by proving his case by his evidence and then the plaintiff can rebut those issues of the defendant by leading evidence. Sometime, it happens that one issue is framed placing burden upon the plaintiff and another issue may be an issue of rebuttal of the issue framed for plaintiff, then in that case, the plaintiff if leads evidence to prove his case, it is not necessary to say that he led evidence to meet with the defence of the defendant because of the reason that the plaintiff has right to prove his case and for that purpose he may not take risk of not proving his case on his assumption that the facts pleaded may be treated as admitted by the defendant by the Court, which may be disputed or may be interpreted subsequently in otherwise way on the basis of the pleas of the defendant. Therefore, what evidence the plaintiff has led on the issues and whether the plaintiff touched the issue of the defendant depends upon the facts of the case and no formula can be provided for deciding the matter." After hearing the learned counsel for the parties and considering the legal position as discussed above, I find merit in the contention raised by learned counsel for the petitioner. In the present case, it is not in dispute that the onus of the issues No. 5 and 12 is on the defendants-respondents. If during the course of leading evidence on the issues, the onus whereof was on the plaintiff, any statement was made with regard to issues the onus of which is on the defendants, the same shall not mean that plaintiff had infact led or concluded his evidence on those issues as it is only after the defendant has led his evidence that plaintiff will come to know the same and get an opportunity to rebut the same. Plaintiff cannot presuppose the evidence which is to be led by the defendant on the issues, the onus whereof is on him. Even otherwise procedural law is subservient to the cause of justice." 9. Similar view was expressed in Ranjit Singhs case (supra). Relevant paragraph 11 thereof is extracted below : "11. In case the principles enunciated in the above referred cases are applied in the fact and circumstances of the present case, the same would support the plea raised by the petitioner. Firstly, the evidence which is in the form of vouches showing refund of the loan amount given by the petitioner-plaintiff to the respondent/defendant were exhibited by the respondent/defendant in his evidence and it was only thereafter the petitioner gets an opportunity to rebut those documents to prove his case and demolish the case set up by the respondent/defendant. Prior to that it was only that these documents were confronted to the petitioner in his cross-examination and were merely put on record and marked. The same without having formally proved on record were not to be read in evidence and for that reason, the petitioner in the facts and circumstances of the case, rightly thought not to rebut the same at that stage. In his evidence, the respondent/defendant may or may not have exhibited these documents in defence. The same without having formally proved on record were not to be read in evidence and for that reason, the petitioner in the facts and circumstances of the case, rightly thought not to rebut the same at that stage. In his evidence, the respondent/defendant may or may not have exhibited these documents in defence. Secondly these documents were not only proved in evidence in rebuttal to the evidence led by the plaintiff/petitioner on issue No. 1 rather on issue No. 3 as well where respondent/defendant had pleaded in the written statement that the petitioner/plaintiff had not approached the court with clean hands. Once an issue the onus of which initially was on the defendant, the plaintiff certainly has right to rebut the evidence led by the defendant on that issue." 10. If the enunciation of law, as referred to above, is considered in the facts and circumstances of the present case, the inescapable conclusion is that the petitioner-plaintiff is entitled to lead evidence in rebuttal in the form of expert witness on the issue, the onus of which was on the respondents-defendants. 11. Accordingly, while setting aside the impugned orders, the trial court is directed to grant opportunity to the petitioner to lead evidence of expert witness to rebut the evidence led by the respondents-defendants on issues No. 2 and 3. 12. The revision petition is disposed of in the manner indicated above.