In CR No.6524 of 2017 (O&M)-PUNJ HC- Plaintiff cannot lead evidence in rebuttal as matter of right on issue in which onus is placed upon defendant; Plaintiff has to reserve such right: P&H HC Justice Alka Sarin [10-05-2022]

Read Order: Rulda Singh v. Paramjit Singh

Monika Rahar

Chandigarh May 11, 2022: While dealing with a revision petition impugning the Trial Court order recording a contrary finding, the Punjab and Haryana High Court has held that a plaintiff cannot lead evidence in rebuttal as a matter of right on an issue, the onus of which is on a defendant. 

The Bench of Justice Alka Sarin held, “A plaintiff has to reserve the right to lead evidence in rebuttal on such an issue the onus of which is on the defendant.”

It was also held that even under Order XVIII Rule 2(3) CPC a plaintiff cannot lead evidence in rebuttal on the entire case after the defendant had completed his evidence. 

The facts of the matter are such that in March 2011, the plaintiff-respondent filed a suit inter-alia for possession by way of specific performance of agreement to sell or in the alternative for recovery of damages along with interest. The defendant-petitioner filed a written statement denying the execution of the agreement to sell and pleaded that it was a forged and fabricated document. 

The Trial Court framed the issued and after the cross-examination of first prosecution witness was completed, the suit was adjourned for the evidence of the defendant-petitioner. The evidence of the defendant-petitioner was closed in November 11, 2016 and the suit was fixed for rebuttal evidence if any. 

The third prosecution witness, Gurmeet Kaur (Handwriting and Finger Print Expert), was examined in chief in rebuttal evidence. On March 15, 2017, when the suit was fixed for cross-examination of third prosecution witness , the counsel for the defendant-petitioner objected that she could not be examined in rebuttal evidence without prior permission of the Trial Court. Thereafter, the counsel for the defendant-petitioner moved an application for taking off the file the evidence tendered in rebuttal by the plaintiff-respondent and for closing his evidence by order. 

The Trial Court dismissed the said application. Hence, the present civil revision petition under Article 227 of the Constitution of India.  

The Counsel for the defendant-petitioner while assailing the impugned Trial Court order, argeud that the plaintiff-respondent did not reserve his right to lead evidence in rebuttal at the time when his evidence was closed by order and, as such, he could produce rebuttal evidence as a matter of right. 

She further submitted that the defendant-petitioner had taken a specific plea in his written statement that the agreement to sell was a forged and fabricated document and an issue in this regard was also framed. However, while leading his evidence the plaintiff-respondent did not produce any handwriting expert and it was only after the defendant-petitioner produced a handwriting expert and his evidence was closed by order that the plaintiff-respondent filed the affidavit of third prosecution witness as examination-in-chief in rebuttal which was against the settled provisions of law. 

After considering rival submission, the Court opined that in view of specific denial by the defendant-petitioner in the written statement in the context of execution of agreement to sell, it was the obligation of the plaintiff-respondent to rebut this plea of the agreement to sell being forged and fabricated and that the plaintiff-respondent did not reserve any right to lead rebuttal evidence when his evidence was closed.

Against this backdrop, the Court observed that a plaintiff cannot lead evidence in rebuttal as a matter of right on an issue the onus of which is on a defendant and that the plaintiff has to reserve the right to lead evidence in rebuttal on such an issue the onus of which is on the defendant.

In the present case, the Court observed that the plaintiff-respondent did not reserve this right when his evidence was closed by order and that the onus of proving as to whether the plaintiff had a cause of action was on the defendant-petitioner and at the time when his (plaintiff-respondent) evidence was closed, the plaintiff-respondent could have reserved his right to lead rebuttal evidence on this issue but he did not.

In light light, the Court added that even under Order XVIII Rule 2(3) CPC a plaintiff cannot lead evidence in rebuttal on the entire case after the defendant had completed his evidence. 

In view of the above, the Court found that the impugned order suffered from perversity and was against the provisions of Order XVIII CPC and the settled law. Resultantly, the Court allowed the present revision petition and the impugned order was set aside.