IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 425 of 2006 Date of Decision : July 14, 2009 M/s Markanda Sugar Traders and another ....Petitioners Versus The Shahbad Cooperative Sugar Mills Ltd., .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Arvind Singh, Advocate Mr. Anurag Goyal, Advocate T.P.S. MANN, J. (Oral) Order passed by Civil Judge (Senior Division), Kurukshetra, on January 4, 2006, while allowing the application of the plaintiff-respondent for summoning of record in rebuttal evidence to issues No.2 and 3, has been challenged by the defendants by filing the present revision under Article 227 of the Constitution of India. Suit for declaration with consequential relief of mandatory injunction was filed by the plaintiff in which learned trial Court framed the following issues on 2.6.1997:- 1. Whether the plaintiff is entitled to the relief of rendition of accounts and interest on the delayed payment and if so, at what rate?OPP. 2. Whether the suit is not maintainable in the present form?OPD. 3. Whether the plaintiff is estopped by his own act and conduct from filing the suit as alleged in preliminary objection No.5?OPD. C.R. No. 425 of 2006 -2- 4. Whether provision of Haryana Coop Societies Act have not been complied with?OPD. 5. Whether the suit is liable to be stayed under Section 10 CPC as another connected matter is pending in the Court of Shri A.K.Raghava, learned Additional Civil Judge(Junior Division), Kurukshetra?OPD. 6. Whether the suit has not been properly valued for the purposes of Court fees and jurisdiction?OPD. 7. Relief. As is clear from the above, onus of proving issue No.1 was upon the plaintiff while that of issues No.2 to 6 on the defendants. Consequently, the plaintiff led evidence in affirmative on issue No.1. Thereafter, the defendants examined their evidence in affirmative and closed the same on 14.12.2004 after availing a few opportunities. The case was, thereafter, fixed for 10.1.2005 for rebuttal and arguments. After availing a number of opportunities for leading evidence in rebuttal, the plaintiff filed an application dated 21.10.2005 wherein it prayed that the concerned official of Punjab National Bank, Shahabad Markanda be summoned as its witness along with different records by way of rebuttal evidence on issues No.2 and 3. The application was resisted by the defendants by filing their reply dated 14.12.2005, but, as mentioned above, learned trial Court allowed the application filed by the plaintiff for leading evidence in rebuttal and, hence, the present revision. The case of the plaintiff in its application dated 21.10.2005 was that it wanted to summon the concerned official from the bank along with the record by way of rebuttal evidence on issues No.2 and 3 as, according to it, the defendants had already led their evidence in affirmative on the said issues. However, a perusal of the application filed by the plaintiff would reveal that by way of the same the plaintiff did not want to lead any evidence in rebuttal on C.R. No. 425 of 2006 -3- issues No.2 and 3, instead, it wanted to examine more evidence on issue No.1 regarding which it had already examined and closed its evidence in affirmative. Such type of evidence, which the plaintiff wanted to lead by way of his application dated 21.10.2005 did not at all concern with issues No.2 and 3 regarding which the defendants had already led their evidence in affirmative and closed it. It is apparent that the plaintiff worded its application dated 21.10.2005 in such a way as if it wanted permission to summon the concerned official from the bank along with the record by way of rebuttal evidence on issues No.2 and 3. As the evidence which the plaintiff wanted to lead by way of evidence in rebuttal pertained to issue No.1 only, onus of which was upon the plaintiff and it had already examined his evidence in affirmative, the only remedy available to the plaintiff was of applying to the trial Court for leading additional evidence, if permitted, but instead of doing so, it filed the application dated 21.10.2005 by mentioning in para 3 therein, though wrongly, that it wanted to summon and examine the concerned official of the bank along with record in rebuttal evidence on issues No.2 and 3. In view of the above, the present revision is accepted, the impugned order is set-aside and the application dated 21.10.2005, filed by the plaintiff for summoning of the concerned official of the bank along with the record, is dismissed. Parties through their Counsel shall appear before the trial Court on August 12.2009. ( T.P.S. MANN ) July 14, 2009 JUDGE ajay-1