Civil Revision No. 6352 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6352 of 2009 (O&M) Date of decision: 07.07.2010 Rajinder Kaur ....Petitioner Versus Ravinder Kaur Sethi ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Gorakh Nath, Advocate, for the petitioner. Ms. Kamalpreet, Advocate, for the respondent. VINOD K. SHARMA, J (ORAL) The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India to challenge the order dated 27.8.2009, vide which the application moved by the defendant/respondent for not permitting the plaintiff/petitioner to lead evidence in rebuttal, stands allowed. The plaintiff/petitioner filed a suit for declaration claiming half share in the property in dispute on the basis of inheritance. The suit was contested, wherein the defendant/respondent set a registered 'Will' to claim the property. As the plaintiff in the plaint has challenged the validity of the 'Will', therefore, the learned trial Court framed the following issue: - “2. Whether the Will dated 30.9.1981 executed by Bakshi Avtar Singh and Will dated 20.7.1993 executed by Smt. Har Kaur widow of Avtar Singh are illegal, null and void and without any consequence? OPP.” Civil Revision No. 6352 of 2009 (O&M) -2- The plaintiff/petitioner led evidence, however, no evidence was led on issue No.2, reproduced above, as it was not possible for the petitioner to have led evidence in negative, as the 'Will' was set up by the defendant/respondent and not the plaintiff. The learned trial Court by placing reliance on the judgment of this Court in Tejinder Kaur Vs. Kishan Singh and others, 2008(1) CCC 813; Dinesh Kumar Vs. State of Haryana and others, 2003(1) CCC 445 and Jagdev Singh and others Vs. Darshan Singh and others, 2007 (2) CCC 261 allowed the application moved by the defendant/respondent, thereby denying the right of rebuttal to the plaintiff/petitioner. Though, on the face of it, the order impugned cannot be challenged in view of the settled law, that the party cannot be allowed to lead evidence in rebuttal on an issue onus of which is on the said party. However, this proposition of law cannot be strictly applied to defeat the ends of justice, specially in a situation like the one before this Court, where the petitioner has been denied the right to contest the 'Will' because of wrongly placing of onus of proof. It is well settled law, that onus to prove the fact is on the person, who pleads the fact. Once the plea of 'Will' was taken up by the defendant/respondent, the onus of proving the 'Will' should have been placed on the defendant/respondent and not on the plaintiff/petitioner to prove the negative to negate the validity of the 'Will'. Therefore, in view of the peculiar circumstances of the case, the learned trial Court should have not entertained the application moved by the defendant/respondent in denying the right of rebuttal evidence, which was in fact given by the Civil Revision No. 6352 of 2009 (O&M) -3- Court to the plaintiff. The learned counsel for the defendant/respondent supported the order by placing reliance on the settled law, that no rebuttal evidence is permissible on an issue, the onus of which is on the party, which did not lead evidence in affirmative. However, in view of the peculiar facts of the case the learned counsel for the respondent conceded that the petitioner be given an opportunity to lead evidence in rebuttal subject to the condition that the defendant/respondent should also be given an opportunity to lead evidence to rebut the evidence so led, as the defendant/respondent was also equally mis-led because of onus to prove was wrongly placed on the plaintiff/petitioner. In view of the stand taken by the learned counsel for the respondent, this revision is allowed, the impugned order is set aside and the petitioner is permitted to lead evidence in rebuttal. This shall, however, be subject to payment of Rs.10,000/- (Rupees ten thousand only) as costs as the plaintiff/petitioner has harassed the defendant/respondent by not taking timely action in getting the onus corrected. It is made clear that, in case, the defendant/respondent so desires, she will also be given an opportunity to rebut the evidence, which may be led by the plaintiff/petitioner, in rebuttal. Revision disposed off. (Vinod K. Sharma) Judge July 07, 2010 R.S.