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2017 DIGILAW 202 (JHR)

Luxmi Pd. Sah @ Mandal @ Luxmi Prasad v. Parma Nand Mandal

2017-01-30

APARESH KUMAR SINGH

body2017
JUDGMENT Aparesh Kumar Singh, J. – Heard learned counsel for the petitioner. 2. Plaintiff petitioner sought to adduce rebuttal evidence under Order 18, Rule 3 of Civil Procedure Code to prove that (A) Maitun Nisha was daughter of Sabul Mian, (B) Maitun Nisha sold the suit property to the plaintiff by registered sale deed, and (C) the plaintiff constructed house on the suit land and is in possession of the suit property and living therein with his family members. Learned trial Court i.e. the Court of Senior Civil Judge-I, Sahebganj by the impugned order dated 29th April, 2015 passed in Title (Partition) Suit no. 17 of 2004, has refused the prayer. 3. The following issues were framed by learned trial Court after completion of pleadings where the plaintiff through plaint has set up a case that he acquired the suit land by registered sale deed dated 8th July, 1985 executed by Maitun Nisha, daughter of Late Saduli Mian, after payment of consideration money and has been in possession of the same thereafter. He has also constructed Pucca house in December, 1985 and has been living with his family members. Following six issues were framed as under: (1) Is the suit as framed maintainable? (2) Has the plaintiff any cause of action for the suit? (3) Is the suit bad for misjoinder and nonjoinder of necessary parties? (4) Is suit barred by principles of waiver and acquiescence, estoppel and law of limitation? (5) Is the plaintiff entitled to recover the possession of the suit premises? (6) Is the plaintiff entitled to get any relief or reliefs as claimed for in the suit? 4. After the plaintiff examined his witnesses, the defendant witnesses were examined and closed on 16th January, 2014. The matter was fixed for final argument. A petition under Order 18, Rule 3 of Code of Civil Procedure has been filed on 25th April, 2015. Undisputedly, plaintiff petitioner did not reserve his right to produce evidence on some of the issues by way of answer to the evidence produced by the other party and concluded his evidence through his witnesses on all these issues. 5. It is contended by counsel for the petitioner that the defendant, in his evidence, however did not adduce evidence on the point that Late Saduli Mian was not the father of Maitun Nisha. 5. It is contended by counsel for the petitioner that the defendant, in his evidence, however did not adduce evidence on the point that Late Saduli Mian was not the father of Maitun Nisha. The plaintiff however thought it proper to establish the said fact in an affirmative way by seeking to adduce rebuttal evidence under Order 18, Rule 3 of Civil Procedure Code. Undisputedly, plaintiff, in his plaint, had made a categorical assertion of fact relating to execution of registered sale deed on 8th July, 1985 by Maitun Nisha daughter of Late Saduli Mian in his favour on consideration. Therefore, the burden of establishing this affirmative fact was on the part of the plaintiff in the first place. The defendant was not under an onus to prove the negative. In case, the defendant did not adduce evidence to the contrary on the point, he may gain or suffer on that count. Plaintiff however in that case would not be eligible to invoke the provisions of Order 18, Rule 3 of Code of Civil Procedure to adduce rebuttal evidence in view of the specific provisions of the Rule which require the party beginning to adduce evidence on several issues and to clearly reserve his right to lead evidence on some of these issues and produce evidence in rebuttal by way of answer to the evidence produced by other party. At no point of time did the plaintiff at the beginning of his evidence or till its closure considered it necessary to reserve his evidence for a latter point of time on any such issue after conclusion of the evidence of the other party i.e., defendant. As has been also observed hereinabove, the affirmative had to be established by the plaintiff as per the case set up by him by way of positive evidence. 6. Learned trial court after consideration of the submission of the parties on the instant plea and taking note of the Divisions Bench judgment rendered by Punjab and Haryana High Court, did not find that the plaintiff had right to adduce rebuttal evidence as prayed for invoking the Order 18, Rule 3 of Code of Civil Procedure. The exercise of discretion by the learned trial court cannot be said to be suffering from errors of jurisdiction requiring interference under Article 227 of the Constitution of India. 7. Accordingly, there is no merit in the instant writ petition. The exercise of discretion by the learned trial court cannot be said to be suffering from errors of jurisdiction requiring interference under Article 227 of the Constitution of India. 7. Accordingly, there is no merit in the instant writ petition. It is dismissed.