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2013 DIGILAW 1564 (PNJ)

GURBALJIT SINGH v. GURWARPAL SINGH

2013-11-27

S.P.BANGARH

body2013
Judgment S.P.BANGARH, J (ORAL) An application under Order 18 Rule 1 and 3 read with Order 13 Rule 1 and 4 of the Code of Civil Procedure, was filed by the petitioner No.1, herein, before the trial Court to the effect that the respondents, herein, had adduced evidence by way of affidavit Ex.PW1/A on 19.11.2012 and, thereafter, he was dully cross- examined. On 10.07.2013, following additional issue bearing No. 7-A was framed: “7-A Whether the suit land has been exchanged between the parties? OPD. Thereafter, the respondent No.1, herein, tendered his affidavit Ex.PW2/A in rebuttal on 10.10.2013 and the whole affidavit contained the averments with regard to the plaint, which is repetition of the affidavit already submitted by him in affirmative, regarding agreement dated 28.02.1989, of the exchange. So, he had a knowledge of the said agreement, as also, exchange effected between the parties. Besides, he closed his evidence on 20.02.2013 in affirmative without reserving his right to lead his evidence in rebuttal. So, it was prayed before the trial Court by the petitioner, herein, that the affidavit Ex.PW2/A be scored off from the record being beyond covering the scope of rebuttal evidence. This application, on the other hand was opposed by the respondents Nos. 1, 2 and 3, herein, by filing written reply, thereto, that the instant application is not maintainable and has been filed to delay the matter. It was also admitted that they have adduced their evidence in affirmative, but the same was not rebuttal to the issues, whose, onus is upon the petitioner, herein. So, it was prayed that they have right to lead evidence in rebuttal. Consequently, prayer for dismissal of application was, thus, made. After hearing both the sides, the trial Court vide impugned order dated 31.10.2013 (Annexure P-1) dismissed the application. Aggrieved, thereagainst, the petitioner, who is defendant No.1 before the trial Court has come up in this revision with prayer for acceptance, thereof. Learned counsel for the petitioner contended that the affidavit PW2/A is required to be scored off from the record, as the contents of evidence contained, therein, are beyond the scope of rebuttal evidence. Thoughtful, consideration has been given to the contention raised by the learned counsel for the petitioner. Onus of issue No. 7-A is upon the petitioner and respondents Nos. 4 to 10. When they have led evidence on issue No. 7-A, then, respondents Nos. Thoughtful, consideration has been given to the contention raised by the learned counsel for the petitioner. Onus of issue No. 7-A is upon the petitioner and respondents Nos. 4 to 10. When they have led evidence on issue No. 7-A, then, respondents Nos. 1 to 3 had a right to lead evidence on this issue in rebuttal. So, it is for the trial Court to see, as to whether the evidence, which is being led by the respondents Nos. 1 to 3 now in rebuttal is beyond the scope of right of leading rebuttal evidence by them. The necessary objection can be raised by the petitioner and respondents Nos. 4 to 10 to the evidence that is to be led by the respondents Nos. 1 to 3 in rebuttal. So, it cannot be held by the Court that respondents Nos. 1 to 3 are not entitled to lead rebuttal evidence, especially, when the onus of issue No. 7-A is on the petitioner and respondents Nos. 4 to 10 and they have led evidence, thereon. Besides, this issue was framed by the trial Court when evidence had already been closed by the respondents Nos. 1, 2 and 3. The trial Court, thus, rightly dismissed the application. There is, thus, no illegality or impropriety in the impugned order, that has been passed by the trial Court. Resultantly, the revision fails and, is, hereby, dismissed with no order as to costs, sans prejudice to the merits of the main case.