The Court set aside the impugned order allowing Plaintiffs to lead rebuttal evidence where the onus of proof lay on them. Held that Order XVIII Rule 3 CPC does not confer a right to rebuttal evidence on a party bearing the onus.
Petition allowed, impugned order set aside, matter remanded for final adjudication within three months.
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versus RICHIE KHOSLA & ORS ..... Respondents Through: Mr. Puneet Saini, Advocate for R- 1&2 (M-9654222460) Ms. Asiya Khan, Advocate for R-3 (M-9971644936) CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
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evidence. The same was allowed by the impugned order dated 17th November, 2018 passed by the ld. Trial Court. The said order is challenged before this Court.
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having been placed on one of the parties, if the other party is leading evidence first, the said party can reserve its right to only lead evidence in the affirmative in the beginning and can lead rebuttal evidence in respect of issues where the onus is not on the said party. This is also clarified in the two judgments relied upon by Mr. Gupta. In the decision of Surjit Singh (supra) , a Division Bench of the Punjab and Haryana High Court has given a categorical finding that if the onus of a particular issue is on the Plaintiff, the Plaintiff would not get a right of leading rebuttal evidence on such an issue. The relevant extract from Surjit Singh (supra) reads as under:
“32. In our opinion, Order 18 Rule 3 of the CPC would not give a right to the plaintiff to lead evidence in rebuttal on issues in which the onus of proof is on the plaintiff. Accepting such an interpretation would be to ignore a vital part of Order 18 Rule 3 of the CPC. The rule clearly postulates that “the party beginning, may, at his option, either produce his evidence on these issues or reserve it by way of answer to the evidence produced by the other parties”. No matter, how liberally a provision in the statute is required to be interpreted, by interpretation it cannot be amended. Whilst construing a statutory provision the Court cannot reconstruct it. The rule consciously provides the parties with an option either to produce the evidence in support of the issues or to reserve it by making a statement to that effect. The statement itself may well be liberally construed to avoid any unnecessary technical obstacles. One such example has been given by the Division Bench in the case of Smt. Jaswant Kaur (supra). It has been held that if a statement is made by the Advocate for the plaintiff that “the plaintiff closes its evidence in the affirmative only,” the same would be read to mean that the plaintiff had reserved its right to lead evidence in rebuttal. We are, therefore, unable to agree with the observations made
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by the learned Single Judge in the case of Kashmir Kaur (supra) that he is entitled to lead evidence in rebuttal as a matter of right. In our opinion, this observation runs contrary to the observations of the Division Bench in Jaswant Kaur's case (supra). The Division Bench has even fixed the maximum time on which the plaintiff has to exercise his option to reserve the right to lead evidence in rebuttal. It has been clearly held that such a reservation has to be made at the time of the close of the evidence of the plaintiff. We are also unable to agree with the observations of the learned Single Judge in the case of Punjab Steel Corporation (supra). In that case the plaintiff sought to lead evidence in rebuttal, after the close of the evidence of the defence. At that stage, the plaintiff cannot be permitted to reserve the right to lead evidence in rebuttal. The observations of the learned Single Judge run contrary to the law laid down by the Division Bench in the case of Smt. Jaswant Kaur (supra). No doubt, the Division Bench clearly lays down that an overly strict view cannot be taken about the modality of reserving the right of rebuttal. But at the same time, it has been held that the last stage for exercising option to reserve the right of rebuttal can well be before the other party begins its evidence. We are in respectful agreement with the aforesaid observations of the Division Bench in the case of Jaswant Kaur (supra) and R.N. Mittal, J., in National Fertilizers Ltd. (supra).”
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aside. The matter shall proceed for final hearing and for final adjudication by the ld. Trial Court. Considering that this is a suit of 1987, it is directed that the ld. Trial Court shall adjudicate the matter finally within three months from 30th November, 2019.
PRATHIBA M. SINGH JUDGE
NOVEMBER 13, 2019 Rahul
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3 issues framed by the court
Whether a plaintiff can be permitted to lead rebuttal evidence under Order XVIII Rule 3 CPC on issues where the legal onus of proof lies upon the plaintiff.
Whether the lower court was correct in allowing the Plaintiffs to lead rebuttal evidence under Order XVIII Rule 3 CPC in a suit for possession and mesne profits.
Whether the challenge against the order allowing rebuttal evidence should be allowed on the ground that it is contrary to settled law.
Colour shows how this judgement treated each authority
Surjit Singh and Ors. v. Jagtar Singh and Ors.Followed¶15
Surjit Singh and Ors. v. Jagtar Singh and Ors., AIR 2007 Punjab and Haryana 1 · Who else cites this
Suman Kapoor v. Rakesh KumarFollowed¶15
Suman Kapoor v. Rakesh Kumar 2015 (9) AD (Delhi) 29
1 provisions across 1 enactments
M/s Loh Vanizya Udyog Pvt. Ltd.
Richie Khosla
Others
Prathiba M. Singh
As recorded by the court registry
A petition under Article 227 of the Constitution invoking the High Court's supervisory jurisdiction over subordinate civil courts.
Judgements on the same questions, provisions and authorities, from every court
