C.R.No.1734 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R.No.1734 of 2011 Date of Decision: March 16, 2011 Darshan Lal .......Petitioner Versus Jalandhar Improvement Trust .......Respondent CORAM:- HON'BLE MR. JUSTICE RAM CHAND GUPTA Present: Mr.Sandeep Arora, Advocate for the petitioner. <><><> RAM CHAND GUPTA,J. (Oral) CM No.6949-CII of 2011 Application is allowed subject to all just exceptions. CR No.1734 of 2011 The present petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 24.2.2011 (Annexure P5) passed by learned Civil Judge (Junior Division), Jalandhar dismissing application of petitioner-plaintiff filed under Section 151 of Code of Civil Procedure for leading necessary evidence as prayed for in the application, in rebuttal. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that a suit for declaration was filed by the petitioner-plaintiff that he is owner in possession of the land measuring 12 Marlas duly described in the C.R.No.1734 of 2011 -2- head note of the plaint and that mutation No.18802 entered and sanctioned in favour of the defendant is illegal, invalid and does not confer any right and title upon the defendant and is liable to be set aside and for permanent injunction restraining the defendant, its employees, officials, agents, nominees, attorneys etc. from interfering into the peaceful possession of land in dispute. Suit was contested by the respondent-defendant. On the pleadings of the parties, following issues were struck in the case vide order dated 24.2.2004: 1. Whether the plaintiff is entitled to the decree for declaration as prayed for? OPP 2. Whether the plaintiff is entitled to decree for permanent injunction as prayed for? OPP 3. Whether the suit is bad for non-joinder of necessary parties?OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the suit is barred by law of res judicata? OPD 7. Whether the suit is barred under Order 2 Rule 2 CPC? OPD 8. Whether the plaint deserves to be rejected under Order 7 Rule 11 CPC?OPD 9. Whether the plaintiff has not come to the Court with clean hands?OPD 10.Whether the defendant is true owner of the property in dispute? OPD C.R.No.1734 of 2011 -3- 11.Whether the suit is time barred?OPD 12.Relief. Parties were called upon to adduce evidence in support of their contentions. Petitioner-plaintiff closed his oral as well as documentary evidence. The evidence of the defendant was also closed and the case was at the stage of arguments when the present application was filed for permission to summon record in rebuttal, which was dismissed by the learned trial Court vide impugned order by observing as under: “Now through this application plaintiff intends to examine concerned reader aforementioned for proving on record document relating to case titled as JIT Vs. Darshan Lal under section 4/5 of Public Premises Act wherein JIT claimed Rs.2500/- from plaintiff per marla which admittedly he had paid since 18.10.1976 till date meaning thereby that existence of this document was in knowledge of plaintiff from the very onset of this litigation so initiated by him and he admittedly has already examined the concerned reader as PW5 who during his cross examination admitted that he had brought the complete record at the time of his examination in court. Moreover, it is pertinent to mention here that the plaintiff has failed to convince as to what prevented him from producing the document in question at the time of leading evidence in affirmative knowing well that he was to do so. It is a well laid norm of law that party cannot lead evidence which it was expected to lead in affirmative. Moreover, no evidence has come on record from defendant's side which was closed by court order and there is no positive evidence led by defendant on any issue the onus of which was on it which the plaintiff wants to rebut. Furthermore, the case is ripe for disposal and this application so moved at fag end seems to be nothing but a mere tool to fill up the lacuna, if any, left in evidence of plaintiff. Also the plaintiff at this stage seems to have C.R.No.1734 of 2011 -4- awakened from deep slumber and wants to modify the evidence so produced by him. In light of aforementioned discussion, I am of opinion that application under consideration, sans any merit; deserves dismissal and is accordingly dismissed. Now to come up on 5.3.2011 for addressing final arguments on behalf of defendant.” It has been contended by learned counsel for the petitioner that document sought to be produced in rebuttal is necessary for the decision of the case and that, however, the same could not be produced due to inadvertence. It has been contended that the respondent-defendant filed an application under Sections 4/5 of Public Premises Act for eviction of plaintiff from the property in dispute and said documents can throw light over the whole controversy involved in the present suit, as in that petition the respondents had claimed Rs.2500/- per marla, as damages since 18.10.1976 till date. Hence, the defendant has prayed to produce that document in rebuttal evidence. The relevant provision under which permission to lead evidence in rebuttal can be granted to a party is Order 18 Rule 3 of the Code of Civil Procedure, which is re-produced as under: 3. “Evidence where several issues – Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.” C.R.No.1734 of 2011 -5- A bare perusal of the aforesaid provision shows that where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and only in that case plaintiff may produce evidence on those issues after defendant has produced all the evidence. However, in the present case, it has been contended that the petitioner-plaintiff has closed his oral evidence on 5.3.2010. The documentary evidence was also closed on 30.4.2010 without reserving right to adduce evidence on any of the issues, the burden of which was on the defendant. Moreover, as has been observed by the learned trial Court in the impugned order, no evidence has been adduced by the defendant in this case. Hence, when right was not reserved by the plaintiff to adduce evidence in rebuttal and when no evidence was adduced by the defendant, it cannot be said that the petitioner is having any right to adduce evidence in rebuttal. Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Thus, the present revision petition is, hereby, dismissed being devoid of any merit. ( RAM CHAND GUPTA ) March 16, 2011 JUDGE SRM