RSA No.242 of 2006 [1] THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 242 of 2006 Date of Decision: 26 - 11 - 2008 Mukhtiar Singh (since deceased) ....Appellants through his L.Rs. and others v. Kailash Chand and another ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Hemant Sarin, Advocate for the appellants. Mr.R.S.Mittal, Sr.Advocate with Mr.Atul Gaur, Advocate for the respondents. *** KANWALJIT SINGH AHLUWALIA (ORAL) The present regular second appeal has been preferred by Mukhtiar Singh who is said to have died during the pendency of the appeal. Counsel for the parties have stated that Mukhtiar Singh appellant No.1 who has died during the pendency of the appeal, was married to Smt.Gomti Devi. Out of the loins of Mukhtiar Singh and womb of Gomti Devi, three sons, namely, Siri Kishan, Kailash Chander and Parminder and two daughters Bimla Devi and Ram Dulari were born. Kailash Chander plaintiff has set up a suit that Mukhtiar Singh had succeeded to 2 Bighas and 7 biswas from his father Mansha Ram and Mukhtiar Singh out of the joint funds accrued from RSA No.242 of 2006 [2] land had purchased land measuring 7 Bighas 9 Biswas, therefore, it was stated that entire property vested in Hindu Undivided Family and, therefore, he is entitled to declaration that ¼ share of Hindu Undivided family vest in him. On 18.2.1997, the trial Court passed the following order:- “Cost paid. Amended title filed. Reply to application under Order 39 Rule 2A C.P.C. Filed on behalf of defendant No.2 & 3. On the basis of the pleadings of the parties, following issues are framed:- 1. Whether property detailed in para No.1 of the plaint is joint Hindu Family Property of the plaintiff and defendant No.1 to 3, in which plaintiff has got ¼ shares? OPP 2. Whether property detailed in para No.5 of the plaint was purchased by defendant No.1 by joint Hindu Family funds, if so to what effect? OPP 3. Whether plaintiff is entitled to ¼ share in the suit property, in case issues No.1 & 2 are framed? OPP 4. Whether defendant No.1 was exclusive owner in possession of the suit property for the last 17-18 years, defendant No.2 & 3 have become its owner in possession by way of family settlement? OPD 5. Whether plaintiff has no locus-standi to file the present suit? OPD 6. Whether suit is not maintainable in the present form? OPD 7. Whether suit is false and frivolous and defendant are entitled to special costs? OPD 8. Whether the suit is bad for mis-joinder of necessary parties? OPD 9. Whether plaintiff has not come to the court with clean hands if so to what effect? OPD 10. Whether defendant No.1 to 3 are guilty of dis-obeying the court order dated 13.6.95 and so they are liable to be RSA No.242 of 2006 [3] proceeded under Order 39 Rule 2A C.P.C.? OPP 11. Relief. No other issues arises out of the pleadings. Any other issues arises, Ld. Counsel for the parties under take to press the same. Onus not objected to. List of the witnesses/PF/DM be filed within 15 days. Pws be accordingly summoned for 19.8.97. In case PF etc. not filed within the period as stated above plaintiff shall be responsible to produce his evidence at his own responsibility.” Mr.Hemant Sarin, appearing for the appellants has drawn my attention to issues No.1, 2 and 3 where the onus to prove these issues was placed upon the plaintiff. It has been further stated by Mr.Sarin that on 13.9.1999, an application dated 12.3.1997 filed by the respondent-plaintiff seeking amendment of the issues so far as onus to prove issues No.1 to 3 was concerned, was considered and the same was declined. The operative portion of the order reads as under:- “5. After hearing both sides at length, I am of the considered view that the present application moved by the applicant-plaintiff deserves to be dismissal. The applicant- plaintiff in para No.1 of the plaint has alleged that the suit property is joint Hindu Family Property of the applicant- plaintiff and respondent -defts. Nos.2 and 3, in which, he is having 1/4th share. After perusal of the record, it is evident that issues in this case were framed vide Court order dated 18.2.1997 by my learned Predecessor. The onus for proving the issue No.2 has been burdened on the applicant-plaintiff. RSA No.242 of 2006 [4] Applicant-plaintiff in para No.2 of the plaint has alleged that the suit property is Joint Hindu Family Property of the applicant-plaintiff and respondents-defendants Nos.2 and 3. Therefore, onus for proving issue No.2 has been rightly shifted on the applicant-plaintiff. Hence, there is no necessity for amendment of issue as alleged in the application. So, present application moved by the applicant-plaintiff is without any merit and the same is hereby dismissed.” Mr.Sarin has further stated that during the pendency of the trial, Kailash Chander respondent-plaintiff was confined to imprisonment for causing murder of his brother Parminder. To controvert this, Mr.R.S.Mittal, learned senior counsel appearing for the respondent-plaintiff has stated that after Kailash Chander was convicted and sentenced, his appeal is pending in this Court and the sentence has been suspended. Be that as it may, order dated 3.3.2003 passed by the trial Court show that no PW was present despite affording last opportunity. This order has also noticed that six opportunities were given to the respondent- plaintiff. Due to his confinement in jail, he could not lead evidence. It is not disputed that from the side of the respondent-plaintiff, no evidence was led in affirmative and his evidence was closed by order. Mr.Hemant Sarin appearing for the appellants has stated that as no evidence was led by the respondent-plaintiff in the affirmative, his suit cannot succeed. The defendants led no evidence. Meanwhile, respondent-plaintiff came on bail. He filed his affidavit PW1/A in rebuttal. Appellant- defendants objected and cross-examined Kailash Chander. Mr.Sarin stated that their objections were not decided by passing a separate order. Mr.Sarin RSA No.242 of 2006 [5] has relied upon a Division Bench judgment of this Court in Surjit Singh and others v. Jagtar Singh and others, 2007(1) PLR 552 to say that under Order 18 Rule 3 CPC, no right can be given to the plaintiff in rebuttal to lead evidence on issues, onus of proof of which was on the plaintiff. Be that as it may, the duty of the Court is to find the truth. The technicalities cannot make one a victor and other a loser. I am of the considered view that as defendants were under a mistaken notion that no evidence has been led by the plaintiff, therefore, they have not discharged their onus regarding other issues and led no evidence. It could be due to wrong legal advice given that no evidence has been led by the plaintiff and his suit is bound to collapse. There can be no premium or discount on the fault or mistake committed by any body in case same is not mala fide. Therefore, it will be in the interest of justice that judgments of two Courts below are set aside and a fresh opportunity is granted to the parties to lead their evidence on the issues framed by the trial Court on 18.2.1997. Ordered accordingly. Since the suit was instituted on 25.5.1995, a direction is given to the trial Court to conclude the proceedings in the suit within one year. Three opportunities shall be granted to both the plaintiff and the defendants to lead their evidence and proceedings shall commence from the stage of recording of evidence. Counsel for the parties shall cause appearance before the trial Court on 17.12.2008. Records be sent back forthwith. Appeal stand disposed off. ( KANWALJIT SINGH AHLUWALIA ) November 26, 2008. JUDGE RC RSA No.242 of 2006 [6]