Civil Revision No.4400 of 2007 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4400 of 2007 (O&M) Date of Decision 26.03.2009 Nihal Singh and others ...... Petitioners VERSUS Mehma and others ...... Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.B.R.Mahajan, Advocate, for the petitioners. Mr.Raman Chawla, Advocate, for the respondents. ***** A.N.JINDAL, J(ORAL): The petitioners have invoked the provisions of Article 227 of the Constitution of India for quashing of the order dated 17.08.2008 passed by Civil Judge (Junior Division), Siwani, dismissing his application for placing on file cassette of voice of defendant No.2-respondent. The issues framed to settle the dispute between the parties are reproduced as under:- (i)Whether the sale deed No.1049 dated 04.12.2001 is null and void and the same is based on misrepresentation or fraud ? OPP (ii)Whether the defendant No.1 has executed an agreement with the plaintiffs regarding the said land on 12.06.2001 ? OPP (iii)Whether the plaintiffs are willing and ready to perform their part of the contract as per the agreement ? OPP Civil Revision No.4400 of 2007 (O&M) 2 (iv)Whether the sale deed executed in favour of the defendant No.2 on 04.12.2001 vide sale deed No.1049 and subsequent mutation is totally null and void and not binding upon the plaintiffs ? OPP (v)Whether the defendant No.1 is entitled for the remaining balance amount as per agreement ? OPD (Defendant No.1) ? (vi)Whether the defendant No.2 is a bonafide purchaser for a valuable consideration ? OPD (defendant No.2) (vii)Whether the plaintiffs and the defendant No.1 have colluded with each other ? OPD (Defendant No.2) (viii)Whether the suit of the plaintiffs is not maintainable in the present form ? OPD (Defendant No.2) (ix)Relief. The onus to prove issues No.1 to 5 was upon the plaintiffs- petitioners (herein referred as 'petitioners') whereas the onus to prove issues No.6 to 8 was upon the respondent No.2 . The petitioners want to prove the cassette in order to lead evidence on issues No.6 to 8. The petitioners never closed his evidence on issues No.6 to 8 but they certainly had got the right to rebut the evidence led by respondents over issues No.6 to 8. The onus of which was upon respondent No.2. The only contention raised by learned counsel for the respondent is that at the time of leading the evidence inaffirmative, the petitioners did not reserve their right to lead the evidence in rebuttal. Heard. The petitioners were to lead evidence only on the issues, burden on which lay upon them, however, they could reserve their right of rebuttal if some new evidence was led to rebut those issues by the Civil Revision No.4400 of 2007 (O&M) 3 respondents. However, the right to rebut the evidence led the respondents, the onus of which was upon them was implicit and independent of the right of rebuttal as referred to above. In any case, if the petitioners while leading evidence in affirmative, were negligent in reserving their rights, then it does not scuttle their right to rebut the evidence on issues No.6 to 8, the onus of which was upon the respondents, fortified from the judgment of this Court titled as Ranjit Singh versus Mehfil Restaurant, 2008 (1) RCR (Civil) 768, which is reproduced as under:- 10. “This Court while dealing with the issue regarding leading of rebuttal evidence by the plaintiff where onus of an issue is on the defendant, in Civil Revision No.4087 of 2006 (Jai Narain v. Satya Narain and others) decided on August 27, 2007, opined as under:- “After hearing the learned counsel for the parties and considering the legal position as discussed above,I find merit in the contention raised by learned counsel for the petitioner. In the present case, it is not in dispute that the onus of the issues No.5 and 12 is on the defendant/respondents. If during the course of leading evidence on the issues, the onus whereof was on the plaintiff, any statement was made with regard to issues the onus of which is on the defendants, the same shall not mean that plaintiff had infact led or concluded his evidence on those issues as it is only after the defendant has led his evidence that plaintiff will come to know the same and get an opportunity to rebut the same. Plaintiff Civil Revision No.4400 of 2007 (O&M) 4 cannot presuppose the evidence which is to be led by the defendant on the issues, the onus whereof is on him. Even otherwise procedural law is subservient to the cause of justice.” The closing of the evidence in affirmative would imply closing of evidence on the issues, the onus of which was upon him and it would in no sense estop his right to rebuttal and to lead evidence in rebuttal to the evidence on issues, the onus of which was upon the defendant. As such, I accept this revision petition, set aside the impugned order and allow the petitioners to lead evidence of their choice by way of rebuttal over issues No.6 to 8, framed by the trial Court. March 26, 2009 (A.N.JINDAL) mamta-II JUDGE