IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 139 of 2008 Date of decision: 21.09.2010 Jagdish Chand Mehta …Petitioners. Versus Sandeep & others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Imran Khan, Advocate. For the respondent: Mr. Vijay Chaudhary, Advocate, vice Mr. Deepak Kaushal, Advocate. Deepak Gupta, J. (Oral) 1. This petition is directed against order dated 23.04.2008, whereby the learned Civil Judge (Senior Division), Sirmaur District at Nahan, has recalled his earlier order dated 13.11.2007 and has held that the petitioner (hereinafter referred to as the plaintiff) is not entitled to lead any rebuttal evidence. 2. The plaintiff filed a suit in the Court of learned Civil Judge (Senior Division), Nahan praying that a decree of mandatory injunction directing the defendants to hand over the vacant portion of the suit premises and in the alternative for recovery of possession be passed against the defendants. The defendants 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 contested the suit and on the pleadings of the parties, following issues were framed: 1. Whether the plaintiff is entitled to possession of the premises in dispute as alleged? … OPP 2. Whether the; plaintiff has no locus standi to sue as alleged? …OPD 3. Whether the suit is bad for non-joinder of necessary parties, as alleged? …OPD 4. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, as alleged? …OPD 5. Whether the suit is legally tenable, as alleged? …OPD 6. Whether the maternal grand-father of the plaintiff and his brother executed a valid will dated 01.05.1986 Bikrami in their favour, as alleged? …OPD 7. Whether the plaintiff has no cause of action as alleged? …OPD 8. Whether the defendant is entitled to special costs, if so, to what amount? …OPD 9. Relief. Thereafter, the plaintiff led evidence. The evidence of the defendants was closed on 13.11.2007, when the learned trial Court passed the following order: “Statement of DW Hari Chand recorded. The ld. Counsel for the defendants has closed the evidence lf all defendants. Now to come up for rebuttal evidence on 11.12.2007. Steps, if any, be taken within three days.” 3. Thereafter, the defendants filed an application that the plaintiff was not entitled to lead any rebuttal evidence since none of the issues, of which onus lie on the defendant, was a factual issue and all of them were legal issues and the defendants have not led 3 any evidence on these legal issues. The two issues on fact are only issues No. 1 & 6 and the other issues, i.e. issues No. 2 to 5, 7 and 8, burden to prove which was on the defendants are legal issues and no evidence was led by the defendants since they can be decided without leading any evidence. 4. It is apparent that the earlier order whereby the plaintiff was given right to lead evidence in rebuttal was passed in a casual and routine manner. Once the court examined the issues, it came to the conclusion that the plaintiff was not entitled to lead evidence on issues No. 1 and 6 since onus for proving these issues lay on the plaintiff. As far as the other issues were concerned, they were only legal issues, not requiring any evidence. Therefore, the earlier order was recalled. 5. I have heard the learned counsel for the parties, especially the learned counsel for the petitioner. 6. It was strenuously contended that the plaintiff should be permitted to lead rebuttal evidence, since the defendants had also raised factual pleas. I am not in agreement with this contention. The factual pleas, which the defendants raised, were only in respect of issues No. 1 and 6, onus of which lay upon the plaintiff and on these issues evidence has been led and closed by the plaintiff. 7. It is well settled law that the party, on whom the onus to prove an issue is placed, has to prove this issue. It has to first lead evidence to prove the issue ad the other party contesting the said issue leads evidence to discredit or disprove the evidence of 4 the party on whom the onus to prove the issue lies. Thereafter, the party on whom the onus was initially laid to prove the issue cannot be permitted to lead rebuttal evidence as a matter of right. Rebuttal evidence by the plaintiff can only be led in those cases where onus to prove some issues based on fact lies upon the defendant. 8. Therefore, I find no error in the order of the learned trial Court. The petition is dismissed, accordingly. The parties through their counsel are directed to appear before the learned trial Court on 28th October, 2010. (Deepak Gupta) Judge September 21, 2010 (rajni)