IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 1632 of 2009 Date of decision: January 28, 2011 Rattan Bala .. Petitioner Vs. Kiran Bala and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Aman Pal, Advocate for the petitioner. Mr. Munish Kumar, Advocate for the respondent No.1. Mr. J.L. Malhotra, Advocate for the respondent No.2. A.N. Jindal, J This petition has arisen out of the order dated 20.2.2009 for leading oral as well as documentary evidence in rebuttal to the issues No.2 to 5 and 4A and 4B (burden of which was on the defendants) was dismissed. The brief facts of the case are that the petitioner-plaintiff (herein referred as, 'the plaintiff') had filed a suit for possession by way of partition of the suit property which is still pending adjudication. The onus to prove issues No.2 to 5 and 4-A and 4-B was on the defendant, therefore, it was pleaded that she may be allowed to lead evidence on these issues in rebuttal. Reply to the application was filed wherein the defendants- respondents (herein referred as, 'the defendants') took the preliminary objection with regard to maintainability of the application stating that the present dispute has already stood decided vide order dated 4.11.2008 when the plaintiff attempted to lead such evidence; the plaintiff has already produced her entire evidence and the defence pleaded by the defendants has been dealt with in anticipation, therefore, she could not lead any evidence in rebuttal. On merits it was submitted that the additional issues had been extracted out of the pleadings of the parties about which the plaintiff was already aware. Knowing fully well about the plea of the plaintiff, the defendants adduced evidence in affirmative in order to prove his case as well as to rebut the defence, therefore, the plaintiff is not entitled to lead any evidence in rebuttal. Civil Revision No. 1632 of 2009 -2- *** The application filed by the plaintiff was dismissed. Arguments heard. Record perused. The facts in the background are that Rama Nand was the owner in possession of the land comprising in Khewat No.1009/860, Khatoni No.1666, Khasra No.785 (0-7), 5316 (0-6), total measuring 13 biswa phukta situated in the municipal area of Bhadurgarh, District Jhajjar and he had suffered a collusive decree in favour of Rattan Bala petitioner and another vide which the petitioner was declared as owner to the extent of ½ share. Rama Nand died on 25.11.1990. He is alleged to have executed a Will on 21.5.1986 in favour of the respondent No.1 of his property including Khasra Nos.785 and 5316/823. The respondent No.1 on the basis of the alleged bogus and fictitious Will got mutation No.11325 decided on 21.8.1997 in her favour behind the back of the petitioner and without any notice to her. Further on the basis of the said fictitious Will, the respondent No.1 vide sale deed No.2039 dated 13.8.1997 sold both khasra numbers to the respondent No.2 and the mutation No.11326 was sanctioned in favour of Rohtas on 21.8.1997. Rohtas- respondent No.2 further sold khasra No.785 (0-7) to Balwan- respondent No.3 and mutation No.13346 was sanctioned in favour of Balwan on 29.12.2001. Balwan – Respondent No.3 sold 1/21 share out of the khasra No.785 (0-7) measuring 75 square yards in favour of the respondent No.4 and mutation No.13363 was sanctioned in his favour on 29.12.2001. Thus, the petitioner has challenged the Will as well as sale deed being ineffective qua her rights. The respondent while appearing in the court denied the allegations as set up in the plaint. The trial court vide its order dated 14.5.2004 framed the following issues :- 1. Whether the plaintiff is entitled for a decree for possession by way of partition, if so to what effect?OPP 2. Whether the suit is not maintainable in the present form?OPD 3. Whether the plaintiff has no locus standi and cause of action to file the present suit?OPD 4. Whether the plaintiff is estopped from filing the present Civil Revision No. 1632 of 2009 -3- *** suit by way of his own act and conduct?OPD 5. Whether the defendant No.2 is a bonafide purchaser qua the suit land, if so to what effect?OPD 6. Relief. After leading evidence, the counsel for the petitioner closed her evidence on 15.4.2005 and thereafter defendants closed their evidence on 25.4.2008. Thereafter, on the application of the defendant, the trial court, on 25.4.2008, framing the following additional issues :- 4(a) Whether the judgment and decree passed in civil suit No.438 of 1984 is false, fictitious, illegal, null and void and is not binding upon the rights of the defendant No.1?OPD 4(b) Whether the registered Will dated 21.5.1986 is executed by deceased Rama Nand in favour of defendant No.1, if so to what effect?OPD The controversy involved in the case is, “whether the petitioner was entitled to lead evidence on the additional issues?” Records reveal that after evidence of the defendants was closed on 25.4.2008, the next date for rebuttal and argument was fixed as 6.6.2008. It would be significant to mention here that on the same day, the trial court had framed the additional issues numbered as 4(a) and 4 (b) and the defendants had made the statement for not examining any fresh witness in order to substantiate those issues and preferred to place reliance on the evidence already led. However, the petitioner in order to shift the onus on issues No.2 to 5 as well as 4(a) and 4(b), produced one expert witness namely Deepak Jain, Handwriting and Finger Print Expert, who appeared and submitted his affidavit Ex.PW4/A along with his report. At this, the defendants moved an application for deleting the affidavit of the expert and other documents. The said application was contested and ultimately vide order dated 4.11.2008, the court accepted the application and deleted the evidence adduced by the plaintiff- petitioner against issue Nos. 2 to 5. Civil Revision No. 1632 of 2009 -4- *** Then, on 11.11.2008, the petitioner moved an application for allowing him to lead evidence against the aforesaid issues, but the said application was dismissed on 20.2.2009. The crux of the facts is that the plaintiff had filed the suit for possession and partition by claiming his rights on the basis of the judgment and decree passed in C.S. No. 438 of 1984, whereas, the defendant No.1 has set up a Will in her favour. The trial court while framing the issues did not frame any issue with regard to the validity of the decree or Will that is why after the defendants closed their evidence and the case was fixed for evidence of the plaintiff in rebuttal, framed the issues with regard to validity of the judgment and that of the Will. In such circumstances, these issues would be treated as framed along with the issues framed earlier, therefore, it was bounden duty of the Court to provide opportunity to both the parties to lead evidence. In this regard order XVIII Rules 1 & 2 CPC is referred as under :- “1. Right to begin - The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin. 2. Statement and production of evidence - (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. (2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole case.” Civil Revision No. 1632 of 2009 -5- *** The law requires for providing opportunity to both the parties to lead evidence according to the onus of proof as fixed by the court for settlement of those issues. If the onus of all the issues is upon the defendants then the defendants would open his evidence first and after the defendants closes their evidence, without leading any such evidence, then the plaintiff would begin his evidence. Admittedly, the onus of issues No.4(a) and 4(b) was upon the defendants, so as the onus to prove issues No.2 to 5, but the defendants did not chose to lead any evidence on issues No.4(a) and 4(b) and opted to rely upon the evidence already led , therefore, in view of this the plaintiff had every right to lead evidence qua those issues in order to rebut the evidence already led on those issues. The plaintiff could not lead evidence on those issues since those were not in existence. To shut the mouth of the plaintiff to lead evidence in rebuttal would amount to scuttling of his right at the threshold. Every party has a right to lead evidence of its choice. Since the defendants had set up the plea with regard to illegality of the judgment and decree passed in C.S. No. 438 of 1984 and also about illegality of the Will, therefore, in the absence of any issue in that regard, the evidence, if any, led earlier would have been treated as evidence beyond the issues. However, the real intention while framing the issues is to make aware the parties, the questions of controversy and to lead evidence in proof or dis- proof of the same. The Karnataka High Court in one of its judgment took a serious view of the matter that in case of additional issues, it could not be expected from the court to dis-allow the parties to lead evidence. The Karnataka High Court in its judgment delivered in case Perikal Malappa vs. T. Venkatesh Gupta, 2007 (5) RCR (Civil) 252 observed as under :- “16. Based on the issues framed by the Court, the parties may lead evidence. Whenever additional issues are framed by a Court at the stage of judgment, it is the duty of the Court to hear the parties on additional issues and to proceed further in the matter. No Court is expected to proceed for judgment Civil Revision No. 1632 of 2009 -6- *** without giving opportunity to the parties as it amounts to infringement of principles of natural justice. 17. But, unfortunately such procedure is not followed in the instant case. Therefore, this Court is of the opinion that the judgment and decree of the Trial Court are required to be set aside and the matter requires to be reconsidered by the Court by giving an opportunity to both the parties to lead evidence if they desire to do so or to hear the learned Counsel for the parties on the additional issues.” Thus, the crux of the law as settled by the Karnataka High Court in Perikal Malappa's case (supra) is that whenever additional issue is framed, the court should provide opportunity to the parties to lead evidence and non providing of such opportunity would amount to violation of the principle of natural justice. Similarly, sub-rule (3) of Order 18 Rule (1) also provides opportunity to the plaintiff to reply generally on the whole case, therefore, also the plaintiff could not be stopped from examining the witnesses in rebuttal against the issues, the onus of which was upon the defendants. As regards the order dated 4.11.2008, the petitioner has challenged the said order on the ground that the court had no power to delete the evidence already led as there is no such provisions in the Code of Civil Procedure and also the order does not reveal the discussion about the Will. Having pondered over the aforesaid contentions, I agree with the same . There is no provision under the Code to delete the evidence as led by the party before the conclusion of the trial and it was only at the conclusion of the trial that the court could ignore such evidence being irrelevant, inadmissible and beyond pleadings or issues or it could refuse to entertain such evidence on such grounds before it commenced. However, there is no embargo on the powers of the court to refuse to place reliance over such evidence on the grounds as mentioned above at the conclusion of the trial. The order dated 4.11.2008 is also bad for the reason that the onus to prove that “decree was not valid” and “Rama Nand had executed a Will” Civil Revision No. 1632 of 2009 -7- *** was upon the defendants and not upon the plaintiff. Therefore, the plaintiff was right to lead evidence in rebuttal, therefore, the order dated 4.11.2008 and 20.2.2009 do not depict the correct legal position and are liable to be reversed. In the wake of the aforesaid discussions, the petition is accepted, the orders discussed above are set aside and the court is directed to proceed in accordance with law. January 28, 2011 (A.N. Jindal) deepak Judge