In CR No. 1948 of 2022: Merely because inadvertent mistake was caused by Court while adjourning matter, plaintiff cannot be deprived of her valuable right of leading evidence on issues in which onus is cast upon her: P&H HC Justice Alka Sarin [20-05-2022]

Read Order: Simarjit Kaur @ Simerjeet Kaur @ Simarjeet Kaur v. Maninder Kaur

Monika Rahar

Chandigarh, May 21, 2022:  While dealing with a revision petition wherein the Trial Court, instead of adjourning the matter for plaintiff’s evidence, inadvertently fixed the case for rebuttal evidence, the Punjab and Haryana High Court has held that the plaintiff cannot be deprived of her valuable right of leading evidence in affirmative on the issues the onus of which was cast upon her merely because an inadvertent mistake was caused by the Trial Court while adjourning the matter, 

The present revision petition was filed before the bench of Justice Alka Sarin under Article 227 of the Constitution of India challenging the order whereby the application filed by the defendant-petitioner for rejection of the affidavit of one of the witnesses (Narjit Singh Dhillon) was dismissed. 

Essentially, in this case, a suit was instituted by the plaintiff-respondent for declaration and consequential relief of permanent injunction. In the written statement, the defendant-petitioner set up a Will (of 2011) in her favour. The issues were framed and vide an order of July 2021, 2017, the application filed by the plaintiff-respondent to direct the defendant-petitioner to lead her evidence on issues the onus of which was cast upon her, was allowed.

In response to this order, the defendant-petitioner filed an application for recalling of the same (the aforesaid order). The said application was contested by the plaintiff-respondent and vide an order, the same was dismissed. 

Thereafter, the defendant-petitioner led her evidence first as burden to prove the first and the second issue was upon her and the case was adjourned for rebuttal evidence. The plaintiff-respondent did not lead any evidence in the affirmative. By another order, the plaintiff-respondent was ready to deposit the diet money for the witnesses. Thereafter, the affidavit of the above-named witness was filed in evidence by the plaintiff-respondent. 

In response, the defendant-petitioner moved an application for rejection of such an affidavit on the ground that plaintiff could not be directed to lead evidence in affirmative under the garb of rebuttal evidence. This application was dismissed, hence the present revision petition was filed. 

The Counsel for the defendant-petitioner contended that the plaintiff-respondent, under the garb of rebuttal evidence, was wanting to lead evidence in affirmative. 

After considering the factual situation and the case advanced by the petitioner’s counsel, the Court observed that the Trial Court vide a detailed order noticed that no evidence was led by the plaintiff-respondent in affirmative. Further, the Court observed that the July 21, 2017 order was only to the extent that the defendant-petitioner was directed to lead her evidence on the issue the onus of which was cast upon her. It was further noted that the plaintiff-respondent was yet to lead her evidence. 

Also, negating the contention of the counsel for the defendant-petitioner to the effect that the plaintiff-respondent could not be permitted to lead affirmative evidence, the Court was of the opinion that no evidence was led by the plaintiff-respondent on issues qua which the onus was cast plaintiff-respondent. In this regard, the Court made reference to the finding recorded by the Trial Court as well (stating that the evidence of the plaintiff-respondent was yet to be led). 

Significantly, the Court also noted that it was noticed by the Trial Court that instead of adjourning the case for plaintiff’s evidence, inadvertently, the case was fixed for rebuttal evidence. 

Thus, in light of the above, the High Court opined that merely because an inadvertent mistake was caused by the Court while adjourning the matter, the plaintiff-respondent cannot be deprived of her valuable right of leading evidence in affirmative on the issues the onus of which was cast upon her. 

Therefore, Justice Sarin asserted that the plaintiff-respondent would have the right to lead her evidence in affirmative on the issues the onus of which was cast upon the plaintiff-respondent as well as in rebuttal on the issues the onus of which was cast upon the defendant-petitioner and qua which the evidence was already led. 

Thus, the revision petition was dismissed.