CS(OS) 510/2008 Page 1 $~18 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) 510/2008 YAHOO PROPERTIES PVT. LTD. ..... Plaintiff Through: Mr. S.P. Kalra, Senior Advocate with Mr. Shashank Vachera & Mr. Shekhar Budakoti, Advocates Versus BHAI MANJIT SINGH & ANR. ..... Defendants Through: Mr. Arun Bhardwaj, Senior Advocate with Mr. Suresh Dutt Dobhal & Mr. Nirmal Goenka, Advocates for BMS (HUF) CORAM: HON'BLE MR. JUSTICE SUNIL GAUR O R D E R % 02.08.2017 I.A.8751/2017 (u/S 151 CPC) By way of this application, first defendant seeks deferring of recording of evidence slated today, by pointing out that O.A.No.101/2017 filed by first defendant would become infructuous if defendants are called upon to cross-examine plaintiff’s witness in rebuttal. Upon notice, learned senior counsel for plaintiff submits that he is ready to argue O.A.No.101/2017. Even learned senior counsel for first defendant submits that he is ready to argue O. A. No.101/2017. In view of aforesaid, date of 11th October, 2017 in O. A. No.101/2017 stands cancelled and hearing is preponed for today. With aforesaid directions, this application is disposed of. CS(OS) 510/2008 Page 2 O.A. No. 101/2017 (under Rule 4 Chapter II of The Delhi High Court (Original Side) Rules, 1967 & Sec.151 CPC) This appeal is directed against order of 15th February, 2017 vide which Joint Registrar (Judicial) has dismissed application of first defendant to reject evidence by way of affidavit filed by plaintiff in rebuttal. The precise submission of learned senior counsel for first defendant is that evidence in rebuttal filed by plaintiff is in affirmative, which cannot be permitted and evidence only in rebuttal is to be led. To submit so, learned senior counsel for first defendant relies upon Supreme Court’s decision in Man Kaur (dead) by LRs Vs. Hartar Singh Sangha (2010) 10 SCC 512 and a Division Bench decision of Punjab and Haryana High Court in Surjit Singh & ors. Vs. Jagtar Singh & ors. 2006 SCC OnLine P&H 1334. Learned senior counsel for first defendant draws the attention of this Court to paragraphs No.10 & 11 of the evidence by way of affidavit filed by plaintiff in rebuttal, to point out that these two paragraphs ought to be deleted, as evidence in affirmative cannot be led by plaintiff. On the contrary, learned senior counsel for plaintiff relies upon Supreme Court’s decision in Bipin Shantilal Panchal Vs. State of Gujarat & anr. (2001) 3 SCC 1 to submit that instead of deciding objections there and then, the court must decide it at the last stage i.e. at the stage of final judgment. Nothing else is urged by either side. Upon hearing and on perusal of impugned order, evidence already recorded and plaintiff’s evidence in rebuttal, I find that there is no dispute CS(OS) 510/2008 Page 3 with the legal proposition that in rebuttal, evidence in affirmative cannot be led. During the course of hearing, contents of paragraphs No.10 & 11 of plaintiff’s rebuttal evidence were objected to by learned senior counsel for first defendant. On a bare perusal of paragraphs No.10 & 11 of plaintiff’s rebuttal evidence, I find that contents of these two paragraphs are merely reproduction of interim applications which were filed during the pendency of this case. In any case, at this stage minute examination of evidence already recorded vis-à-vis plaintiff’s rebuttal evidence is not required to be undertaken, as the appropriate stage to do so, would be at the stage of final arguments. The course to be adopted in such a situation is to allow the rebuttal evidence to be recorded with liberty to defendant to raise objections and the said objections are required to be decided at the final stage. Such a view is being taken in view of authoritative pronouncement in Bipin Shantilal Panchal (supra). Pertinently, in Surjit Singh (supra), Supreme Court’s decision in Bipin Shantilal Panchal (supra), has not been taken note of and so, Punjab and Haryana High Court’s decision in Surjit Singh (supra) is of no avail. So far as Supreme Court’s decision in Man Kaur (supra) is concerned, I find that question of deciding objection taken during the course of evidence, was not subject matter of consideration in Man Kaur (supra), and so, the said decision does not advance the case of defendants. Upon prima facie view of evidence already recorded and the rebuttal evidence, I find that the appropriate course would be, to permit plaintiff to lead evidence in rebuttal by way of plaintiff’s affidavit, with liberty to defendants to raise objections and the said objections would be decided at the final stage. CS(OS) 510/2008 Page 4 In view of aforesaid, this appeal against impugned order of 15th February, 2017 is dismissed while refraining to comment upon the nature of evidence led. The appeal is accordingly disposed of. CS(OS) 510/2005 & I.A. No. 8200/2017 (u/O XXXIX Rules 1 & 2 CPC) Vide separate detailed order, O. A. No.101/2017 has been decided. To permit applicant-defendant No.1 to avail the remedy as available in the law against order in O. A. No.101/2017, it is directed that recording of evidence shall commence on 17th August, 2017 and not on the date fixed by Joint Registrar (Judicial). List on 17th August, 2017 before Joint Registrar (Judicial) for plaintiff’s witness in rebuttal. The concerned Joint Registrar (Judicial) be apprised of this order forthwith. SUNIL GAUR, J AUGUST 02, 2017 r