Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 55 (PNJ)

Raj Kumari v. Surinder Singh

2012-01-10

RAJESH BINDAL

body2012
JUDGMENT Mr. Rajesh Bindal J.: - Challenge in the present petition is to the order dated 13.8.2010 passed by the learned court below whereby an application filed by the defendants-respondents for not considering the affidavit filed by Surinder Sharma PW3 in rebuttal evidence was accepted. 2. The present revision arises out of a suit for permanent injunction filed by the petitioner restraining the defendants-respondents from causing any impairment, damage to the wall shown in the site plan attached to the suit or raising any construction or causing any damage to the property mentioned in the suit. After completion of proceedings, the issues were framed. The petitioner-plaintiff concluded her evidence and thereafter even the defendants-respondents also closed their evidence. It was thereafter that Surinder Sharma, who had already been examined as PW, on an application filed by the plaintiff was sought to be examined as a witness in rebuttal. His affidavit was filed. However, on an application filed by the defendants, it was directed that the same shall not be taken into consideration. It is this order which is impugned by the petitioner before this court. 3. Learned counsel for the petitioner submitted that in terms of provisions of Order XVIII Rule 3 CPC, the plaintiff is entitled to lead evidence in rebuttal for the case set up by the defendants. Hence, she is entitled to lead evidence in rebuttal and order passed by the learned court below for non-considering the affidavit filed by PW3 Surinder Sharma while leading evidence in rebuttal deserves to be set aside. 4. On the other hand, learned counsel for the respondents submitted that primarily there is one issue in the suit filed by the petitioner, namely, as to whether the plaintiff is entitled to decree for permanent injunction as prayed for. In support of his pleadings, the petitioner had already led evidence. After the defendants-respondents had led evidence in defence, PW3 Surinder Sharma, who had already appeared for the petitioner-plaintiff was sought to be produced in rebuttal evidence. Unless there is issue, the onus of which is on the defendants, the plaintiff cannot be permitted to lead evidence in rebuttal. In support of his pleadings, the petitioner had already led evidence. After the defendants-respondents had led evidence in defence, PW3 Surinder Sharma, who had already appeared for the petitioner-plaintiff was sought to be produced in rebuttal evidence. Unless there is issue, the onus of which is on the defendants, the plaintiff cannot be permitted to lead evidence in rebuttal. In support of his contentions, reliance was placed upon Jagdev Singh and others vs. Darshan Singh and others, [2007(3) LAW HERALD (P&H) (DB) 1854] : 2007 (1) RCR (Civil) 794, Mohan Pal Singh and another vs. Karampal Singh and another, 2010 (4) RCR (Civil) 627, and Mohinder Singh vs. Balbir Singh and others, [2011(1) LAW HERALD (P&H) 808] : 2011 (2) PLR 390. 5. Heard learned counsel for the parties and perused the paperbook. 6. It is a case which was filed by the petitioner-plaintiff way back on 30.3.2001. The issues were framed on 21.5.2001. In terms of the prayer made in the suit, the issue was framed as to whether the plaintiff is entitled to decree for permanent injunction as prayed for. The onus thereof was on the petitioner-plaintiff. The other issues were apparently framed on the preliminary objections raised by the defendants in the written statement regarding maintainability of the suit. In support of the pleadings, the petitioner had concluded her evidence. PW3 Surinder Sharma photographer was produced to show the condition of the property. After respondents-defendants concluded their evidence in defence, PW3 is again sought to be produced in rebuttal evidence by the petitioner-plaintiff. The issue as to whether the plaintiff has a right to lead evidence in rebuttal on the issue, the onus of which was on her, has been considered by this court in Mohan Pal Singh’s case (supra) and it was opined that in such circumstances, the plaintiff cannot be permitted to lead evidence in rebuttal. Similar is the view in Mohinder Singh’s case (supra). In Ranjit Singh vs. Mehfil Restaurant, [2008(1) LAW HERALD (P&H) 75] : 2008 (1) RCR (Civil) 768, this court had opined that the plaintiff has a right to lead evidence in rebuttal on the issue, initially the onus of which was on the defendants. 7. Similar is the view in Mohinder Singh’s case (supra). In Ranjit Singh vs. Mehfil Restaurant, [2008(1) LAW HERALD (P&H) 75] : 2008 (1) RCR (Civil) 768, this court had opined that the plaintiff has a right to lead evidence in rebuttal on the issue, initially the onus of which was on the defendants. 7. Considering the aforesaid enunciation of law in the light of the facts and circumstances of the present case, where the onus of the issue was on the petitioner-plaintiff and in discharge thereof, she has already led evidence, after the conclusion of evidence by the defendants, the petitioner-plaintiff cannot be permitted to rebut the same. The contention raised by learned counsel for the petitioner-plaintiff that the plaintiff is entitled to reply generally on the whole case is totally misconceived. 8. For the reasons mentioned above, I do not find any merit in the present petition, the same is accordingly dismissed. ----------