C.R. No. 257 of 2010 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 257 of 2010 (O&M) Date of Decision : 15.1.2010 Pargat Singh .......... Petitioner Versus Barinder Singh (minor) & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. A.S. Gill, Advocate for the petitioner. **** VINOD K. SHARMA, J. (ORAL) The petitioner has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, to challenge the order dated 24.11.2009 (Annexure P-8), vide which the plaintiff / respondent No.1 have been allowed to lead evidence in rebuttal. The plaintiff / respondent No.1, filed a suit for declaration claiming himself to be owner in possession of 1/4th share of the land detailed in the suit, on the basis of Will dated 18.1.1995, executed by Shri Diwan Singh son of Nand Singh son of Shri Sabha of village Ghumiara, Tehsil and District Jalandhar i.e. the grand father of the plaintiff. The plaintiff also challenged the mutation sanctioned in favour of defendant No.1, on the basis of Will dated 9.10.1996, which was also claimed to have been executed by Sh. Diwan Singh son of Shri Nand Singh. The said Will was challenged to be null and void and a forged document. The suit was contested. On the pleadings of the parties, the C.R. No. 257 of 2010 2 learned trial Court framed the following additional issues :- “1. Whether plaintiff is entitled to declaration as prayed for?OPP 2. Whether Will dated 18.1.1995 was executed by Diwan Singh?OPD 3. Whether Will dated 9.10.1996 was executed by Diwan Singh ?OPD” The plaintiff / respondent No.1, led evidence on issues No.1 & 2. Plaintiff / respondent No.1 had named Dr. Dinesh Dada as one of the witness to be examined by him. However, plaintiff did not examine Dr. Dinesh Dada, and closed his evidence in affirmative. Defendant / petitioner thereafter led evidence to rebut the evidence of the plaintiff / respondent, and also to prove issue No.3, the onus of which was on the petitioner. The case was thereafter fixed for rebuttal evidence. The case of the petitioner is, that the plaintiff / respondent No.1 did not produce the evidence in rebuttal, in spite of availing number of opportunities. It is further the case of the petitioner, that on 29.8.2009, the plaintiff / respondent No.1 filed an application to lead evidence in rebuttal. The application was opposed on the plea, that Dr. Dinesh Dada could not be examined in rebuttal, as he was shown to be the witness of the plaintiff / respondent No.1 in affirmative, and in spite of taking number of opportunities, he was not examined. The application stands allowed. The learned counsel for the petitioner vehemently contended, that in view of the previous decision inter se parties, a plea of res judicata was raised, therefore, it was not permissible for the plaintiff / respondent No.1 to lead any evidence in rebuttal. The plea raised by the petitioner was C.R. No. 257 of 2010 3 rejected by the learned trial Court, and the application for rebuttal evidence was allowed. The learned counsel for the petitioner again reiterated the grounds taken before the learned trial Court to contend, that decision on the validity of the Will dated 9.10.1996 was to operate as res judicata, in view of the earlier decision by the Civil Court. It is also the contention of the learned counsel for the petitioner, that once a witness was shown to be witness in affirmative he could not be called in rebuttal. The impugned order, therefore, deserved to be set aside. On consideration, I find no force in the contention of the learned counsel for the petitioner. Once the onus to prove issue No.3 was on the defendant and evidence was led to prove the said issue, the plaintiff had the right to lead evidence in rebuttal on the said issue, merely because a particular witness was shown as witness to prove affirmative and was not examined, could not be a ground to reject the application to examine him in rebuttal, which was the right with the plaintiff / respondent No.1 to lead evidence. The plaintiff as of right can lead evidence in rebuttal on issue, the onus of proof of which is on defendant. No fault, therefore, can be found with the exercise of jurisdiction by the learned trial Court in allowing the application moved by the plaintiff / respondent No.1. No merit. Dismissed. 15.1.2010 ( VINOD K. SHARMA ) 'sp' JUDGE