CRP 296/2009 BEFORE THE HON’BLE MR. JUSTICE AC UPADHYAY JUDGMENT AND ORDER This application under Article 227 of the Constitution of India is directed against the order dated 10.6.2009 passed by the learned Munsiff No.1 , Tinsukia in Misc.(J) Case No.56/09, arising out of the Title Suit No.30/06, wh ereby the petition under Section 151 CPC, filed by the petitioner-plaintiff, pra ying for allowing to adduce rebuttal evidence, after closing of the evidence of defendants’ witness, in the counterclaim, was rejected. 2. Heard Mr. S. Banik, learned counsel appearing for the petitione r-plaintiff (hereinafter ’plaintiff’) and Mr. J. Roy, learned counsel appearing for the opposite parties-defendants(hereinafter ’defendants’). 3. The plaintiff is the owner of registered Tata Indica DLS Vehicle bearing Registration No.AS-23C-0004. He purchased the vehicle from defendant No .2, who is the authorized dealer of Tata Motors. After the purchase, the vehicle met with an accident on 6.10.2005, in which the plaintiff and her daughter were seriously injured. The vehicle in question was brought to the garage of the def endant No.2, for repairing and it was indicated to the plaintiff by the defendan ts that the cost of the repairing would be approximately Rs.40,000/-. The vehicl e was finally delivered to the plaintiff after repairing, in the 2nd week of Jan uary, 2006. However, the plaintiff was given a bill amounting to Rs.1,31,814/-, for repairing of the vehicle. The plaintiff questioned the bill and then the def endants tried to take over possession of the said vehicle by unlawful means. Hav ing been compelled by the circumstances, the plaintiff filed the Title Suit No.3 0/06, in the Court of learned Munsiff No.1, Tinsukia against the defendants, pra ying for the following relief(s) - i) Grant a judgment and Decree by declaring that the bill dated 11.1.2006, issu ed by the defendant’s in respect of vehicle No.AS-23-C-0004, is exorbitant, exce ssive, unreasonable, as such, the bill is not enforceable in the eye of law. ii) Grant a Judgment and Decree by declaring that the defendants or any authorit y have no valid right to disturb the lawful and bonafide possession and custody of the plaintiff in respect of the vehicle No.AS-23 C 0004. iii) Grant a Judgment and Decree of permanent injunction against the defendants, restraining the defendants and/or any other authorities, person(s) from disturb ing the lawful and bonafide possession and custody of the plaintiff in respect o f the vehicle No.AS-23 C 0004. iv) Grant a temporary injunction as above. v) Grant a leave under Order 6 Rule 17. vi) Grant cost of the suit. vii) Grant any other relief(s) to which the plaintiff is entitled in the eye of law, equity and justice. 4. The defendants filed a written statement and also set up a count er claim for a decree, amongst others for recovery of Rs.1,16,814.00 along with interest thereon @ 12% per annum from the plaintiff. The plaintiff also filed a written statement against the counter claim raised by the defendants. 5. During the course of trial, though the evidence of the plaintiff ’s witness PW-1 was adduced by submitting evidence on affidavit, but due to fail ure of the plaintiff witness PW-1, to appear in the court for cross examination by the defendants, the evidence of the plaintiff was closed by the trial court a nd accordingly, date was fixed for evidence of the defendants witness. 6. The plaintiff by filing Misc.(J) Case No.56/09, prayed for givin g an opportunity to the plaintiff to adduce rebuttal evidence in support of his pleadings i.e. written statement in the counter claim, filed by the defendants/ counter claimant. However, the petition so filed by the petitioner-plaintiff was rejected by the learned trial Court by passing the impugned order in the Misc. case aforesaid, which gave rise to this petition. The operative part of the impu gned order passed by the learned court below in Misc. Case No.56 of 2009 is depi cted herein below - This Misc.(J) Case has arisen out of Title Suit No.30/06 upon the petition file d by the plaintiff under Section 151 CPC praying therein to allow her to adduce evidence after the evidence of the defendant. Seen the petition. Heard both the sides. The plaintiff side has submitted that in this case their evidence was closed wit hout examination of any witness, as the plaintiff side failed to adduce evidence on the date fixed for the same. The plaintiff side has submitted that as there is a counter claim in the suit, the case got fixed for evidence of the defendant ’s side. The plaintiff would contend that as she had filed written statement aga inst the counter claim of the defendants they should be given another opportunit y to lead evidence against the counter claim after closure of the evidence of th e defendant side. The learned counsel for the plaintiff, Sri B. Dutta would contend that as they h ad filed written statement against the counter claim and as the counter claim is regarded as a separate suit, the plaintiff ought to be given another chance to lead evidence in support of her written statement against the counter claim. The learned counsel for the defendant, Sri Pathik Deb would contend that the pla intiff was given an opportunity to lead evidence and she failed to lead evidence as such the petition ought to be rejected. Heard. Perused the record. The plaintiff in this case was given chance to adduce evidence for several dates and the plaintiff’s witness, Sri Hari Narayan Borkat oky filed his examination in chief by way of affidavit but did not produce himse lf for cross-examination even after several adjournment for the same, as such th e evidence of the plaintiff side was closed and the examination in chief by way of affidavit was taken off the records, vide order dated 25.5.09. 7. Mr. S. Banik, learned counsel appearing for the plaintiff strenu ously submitted that the counter claim filed by the defendants is a separate sui t, whereby claim has been made against the plaintiff by the defendants for recov ery of Rs.1,16,814.00, in the counterclaim. The plaintiff also has submitted he r written statement elaborately explaining her defence stand. Therefore, it is s ubmitted that the plaintiff as defendant in the counter claim is required to be afforded adequate opportunity of being heard by giving opportunity to adduce reb uttal evidence, before conclusion of the trial, like the way it is done in a reg ular suit. Referring to the provision of Order 18 Rule 3 CPC, learned counsel p ointed out that the petitioner-plaintiff as a defendant in the counter claim has every right to produce her witness to rebut the evidence laid by the counter cl aimant. Therefore, for the ends of justice, the learned trial Court ought to hav e given the petitioner-plaintiff an opportunity to adduce her rebuttal evidence. Learned counsel for the plaintiff submitted that in terms of the provision of O rder 18 Rule 3 of the CPC, the plaintiff cannot be denied to adduce rebuttal evi dence on those issues in the counter claim, where the defendants are cast with t he onus to prove. Learned counsel for the petitioner pointed out that by refusin g to allow the petitioner to adduce rebuttal evidence, the learned trial court h as failed to exercise jurisdiction vested in law, which warrants interference by this court. 8. Mr. J. Roy, learned counsel for the respondents submitted that t he plaintiff failed to adduce her witness, when the opportunity was afforded by the court, in the suit filed by the plaintiff. Therefore, now the petitioner-pla intiff cannot be given the privilege of adducing further evidence after closing of the evidence of the plaintiff’s witness. Learned counsel further pointed out that though a counter claim has the status of separate suit, but as the counter claim has arisen from the same subject matter and issues were framed for both s uit and the counter claim together, the plaintiff cannot be extended the privile ge of adducing rebuttal evidence, since the plaintiff’s evidence has already bee n closed by the court. 9. In support of his contention, learned counsel for the defendants has relied on the decision of Dinesh Kumar Vs. State of Haryana and others repo rted in AIR 2003 Punjab and Haryana 73, wherein, the learned single Judge of the Punjab and Haryana High Court held that the plaintiff cannot be given with the opportunity of producing evidence to rebut the evidence led by the defendants, i rrespective of the issue in question, since the plaintiff has led his evidence t o prove the issues framed by the Court. 10. However, apparently, there is a subtle difference between the pr esent case in hand and the case decided in Dinesh Kumar(Supra). In the present c ase the petitioner-plaintiff is seeking opportunity to adduce rebuttal evidence, to vindicate his own stand in the written statement filed in the counter claim. However, in Dinesh Kumar(Supra), the application was filed by the plaintiff see king permission to produce evidence in rebuttal, in order to rebut the evidence led by the defendants in the suit filed by the plaintiff. 11. It would be pertinent to extract herein below the provision s of Order 18 Rule 3 of the CPC, which reads as follows:- 3. Evidence where several issues.- Where there are several issues, the burden o f proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of ans wer to the evidence produced by the other party; and, in the latter case, the pa rty beginning may produce evidence on those issues after the other party has pro duced all his evidence, and the other party may then reply specially on the evid ence so produced by the party beginning; but the party beginning will then be en titled to reply generally on the whole case. 12. If we read Order 18, Rule 3 of the Code of Civil Procedure as a whole, it transpires that when several issues are framed in a suit, it would be the Plaintiff, who would lead evidence, since the onus to prove issues has been placed on the Plaintiff. Conversely, in a counter claim, obviously there are sev eral issues and the onus to prove some of which is on the Plaintiffs and of some on the Defendants. The Plaintiff leads evidence only on those issues, in which the onus to prove is on him, and then he can reserve his right to lead rebuttal evidence on the issues, in which onus to prove is on the Defendant. If the Defen dant is required to lead evidence on all issues, then the Plaintiff would have t he right to lead evidence in rebuttal, on those issues in which the onus to prov e is on the Defendant. This is obvious from the words used in this rule that in the latter case the party beginning may produce evidence on those issues after t he other party has produced its own evidence on those issues. It is only when th e other party is again given a right to lead evidence either by way of additiona l evidence or otherwise. More so, in a counter claim the Plaintiff would get a r ight to lead rebuttal evidence on those issues, which are required to be proved by the defendant as counter claimant. In these circumstances, the Plaintiff, app arently, cannot be denied the right to adduce rebuttal evidence. 13. It is well settled law that the party, on whom the burden to pro ve an issue is given, has to prove the issue. It has to first lead evidence to p rove the issue and the other party contesting the said issue leads evidence to d iscredit or disprove the evidence of the party on whom the onus to prove the iss ue lay. The party on whom the onus was initially laid to prove the issue cannot be permitted to lead rebuttal evidence as a matter of right. However, rebuttal e vidence by the Plaintiff cannot be denied on those issues, which are required to be proved by the Defendant. Accordingly, in a counter claim, where the onus to prove the issues are on the defendant by adducing evidence, the plaintiff would have a right to adduce rebuttal evidence. 14. The right of rebuttal is provided under Order 8 Rule 3 CPC and the Order does not specify that a choice or option is to be exercised by the plainti ff after its evidence is over. This right has been given irrespective of exerci se of the option at that stage. It is only after defendant’s evidence in the co unter claim the plaintiff can decide whether there is necessity of leading evide nce in rebuttal or not. Therefore, at that stage also, plaintiff can exercise hi s right of leading evidence in rebuttal. 15. On careful consideration of the facts and circumstances, leading to filin g of this application, it appears that the plaintiff in the counter claim took a definite defence stand in his written statement. Therefore, on conclusion of th e recording of the evidence of the defendants in the counter claim, the court ha s every power to allow the plaintiff to adduce his rebuttal evidence in the coun ter claim on those issues in which onus to prove is cast on the defendants. If s uch opportunity is not afforded to the plaintiff, it would amount to denial of n atural justice. 16. In view of the above discussion, the order of learned trial Cou rt is patently erroneous. The Plaintiffs, in any circumstances, is required to b e permitted to lead rebuttal evidence on those issues where the onus of proof is on the defendant as counter claimant. 17. Consequently, I find that the impugned order passed by the learn ed trial court warrants interference. Accordingly, the impugned order dated 10.6 .2009 passed by the learned Munsiff No.1, Tinsukia dismissing Misc.(J) Case No.5 6/09 is hereby set aside and the matter is remitted to the trial Court with a d irection to allow the petitioner-Plaintiffs to lead rebuttal evidence on those issues, where the onus of proof is cast on the defendants counter claimant. 18. With the above observation and direction the application filed b y the plaintiff petitioner is allowed. No costs.