Civil Revision No. 4893 of 2007 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4893 of 2007 Date of decision : 14.1.2009 Gheesa Lal .....Petitioner Versus Bhusan Kumar and others ...Respondents **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Ashish Gupta, Advocate for the petitioner. Mr. Gaurav Chopta, Advocate for respondent No.1. Effecting of service upon respondents No.2 and 3 was dispensed with vide order dated 8.1.2007 as they are proforma respondents in character. S. D. ANAND, J. After the examination-in-chief of PW-5 and PW-7 had been recorded by the learned Trial Court, the reception thereof was resisted by petitioner-defendant on the plea that evidence aforementioned did not come within the ambit of rebuttal evidence. The plea was resisted by the learned counsel for the respondent-plaintiff who argues that evidence of PW-5 and PW-7 indeed constituted rebuttal evidence in the context of Issues No.3,4,5,6 and 7, the onus of proof whereof was upon the petitioner-defendant. Learned Trial Court negatived the plea raised by the petitioner-defendant by observing that evidence in the statements of PW-5 and PW-7 is indeed of rebuttal character. It is further held that the respondent-plaintiff was entitled to adduce evidence to rebut the evidence Civil Revision No. 4893 of 2007 -2- **** adduced by petitioner-defendant in respect of issues No.1,2 and 3. It is apparent from the pleadings that the trial is proceeding on the following issues:- 1) Whether the defendant no.1 executed a Chithi/Ruka dated 9.4.96 in favour of the plaintiff and took a cash loan of Rs.16 lacs ?OPP 2) Whether alleged Chithi/Rukka dated 9.4.96 is without consideration? OPP 3) Whether the plaintiff is entitled to recover Rs.25,65,000/- with costs and interest as prayed for? OPP 4) Whether the suit is bad for mis-joinder of the parties? OPD 5) Whether the suit is maintainable? OPD 6) Whether the suit is time barred? OPD 7) Whether the plaintiff is a money lender? If so, its effect? OPD 8) Relief. A copy of the examination-in-chief of PW-5 and PW-7 has not been placed on record. It is only on a perusal thereof that this Court could arrive at its own conclusion with regard to character of evidence i.e. whether it was an evidence of affirmative or rebuttal character. However, learned counsel for the parties do not want the matter to be adjourned for production of that examination-in-chief. Learned counsel, however, agree that it could be left to the learned Trial Court itself to ultimately decide whether the evidence in the statement of PW-5 and PW-7 is affirmative or rebuttal in character. The petition is disposed of with a direction to the learned Trial Civil Revision No. 4893 of 2007 -3- **** Court that it shall proceed to allow the cross-examination to be conducted upon PW-5 and PW-7. However, before proceeding to hear the arguments, the learned Trial Court shall proceed to record an independent finding about whether the evidence in the statements of PW-5 and PW-7 is affirmative or rebuttal in character. It is indicated for the benefit of the Trial Court that rebuttal evidence can be adduced only to rebut the evidence adduced by the defendant in respect of issues, the onus whereof was upon him. Insofar as issues no.1,2 and 3 are concerned, the onus of proof thereof was upon the respondent-plaintiff. Once the evidence of affirmative character had been adduced by the plaintiff and evidence in rebuttal thereof has been adduced by the respondent, there would be no occasion for the plaintiff-respondent to adduce evidence in rebuttal of the evidence already adduced by the defendant-petitioner under issues No.1,2 and 3. January 14, 2009 (S. D. ANAND) Pka JUDGE