Gurnam Singh vs Jit Singh and Others

V.S. Aggarwal, J.—The present revision petition is directed against the order passed by the learned Additional Civil Judge, Ambala dated 8.1.1998. By Virtue of the impugned order the learned trial Court did not permit the petitioner to lead the evidence in rebuttal and fixed the case for arguments.

The relevant facts are that two suits have been filed; one by Gurnam Singh petitioner and other by Niranjan Singh and others. In Civil Revision No.354-B of 1987, on 5.2.1988 this Court had directed that both the suits be consolidated. The trial Court was to carry out the orders and dispose of both the suits simultaneously. The trial admittedly had proceeded. But on 25.11.1997 the learned Additional Civil Judge had framed the following additional issues:-

"16-A. Whether the decree dated 20-4-72 is collusive null and void and not binding on the right of Niranjan Singh and Jeet Singh? OPD.

16-B. If the above issue is not proved in affirmative whether the impugned decree operates as res judicata?OPD

16-C. Whether will dated 28-3-72 registered on 20-5-72 is a validly executed will and whether Smt. Basant Kaur was competent to execute the same in favour of Gurdeep Singh. Gurbachan Singh and Jarnail Singh? OP sons of Gurnam Singh.

16-D. What is the share of Naranjan Singh and Jeet Singh defendants in the suit land? OPD.

16-E. Whether Naranjan Singh and Jeet Singh filed a suit for partition before the Assistant Collector 1st Grade, if so, its effect? OPD"

At that stage on behalf of the petitioner it was stated that petitioner has already led the evidence in affirmative and he does not want to lead any evidence after recasting of the issues. In other words, the petitioner did not want to lead any evidence in affirmative. Subsequently, the petitioner''s counsel expressed his desire to produce evidence in rebuttal. Vide the impugned order the learned trial Court did not permit the said evidence.

Before this Court the basic question agitated was as to if the petitioner had the right to lead evidence in rebuttal or not? Perusal of the order so passed reveals that petitioner wanted to lead evidence in rebuttal in respect of issue No.16-C reproduced above. But the onus of said issue was on the petitioner. Once the onus of the said issue was on the petitioner, he had no right to lead the evidence in affirmative. Consequently, the petitioner could not lead the claimed evidence and there is no ground to interfere in the impugned order. The revision petition may fail and is dismissed.