Iqbal Singh vs Market Committee and Others

Jaswant Singh, J.—By filing the present petition under Article 227 of the Constitution, Plaintiff-Petitioner has prayed for setting aside the impugned order dated 3.3.2011 passed by the learned trial Court whereby his application for leading evidence in rebuttal has been dismissed.

Plaintiff-Petitioner filed a civil suit No. 11 dated 10.12.1999 for declaration with consequential relief of permanent injunction regarding the suit property as described in the head note of the plaint. Defendants-Respondent Nos. 1 to 4 resisted the claim of the Plaintiff-Petitioner by filing their separate written statements. After taking into consideration the pleadings of both the sides, learned trial Court framed issues.

During the tendency of the suit, Plaintiff-Petitioner filed an application for summoning the witness in rebuttal evidence. Upon notice, the application was opposed by the Defendants-Respondents. After hearing both the sides, the application has been dismissed by the learned trial Court vide the impugned order. Hence the present revision petition.

Heard learned Counsel for the Petitioner and perused the paper book.

Learned Counsel for the Petitioner argues that Respondent No. 4 inter alia had submitted in her written statement that she herself is the owner in possession of the suit property and in this regard, issues No. 2, 3, 5 and 6 had been framed and burden lies upon the Defendant-Respondent No. 4 to prove the said issues and for that purpose, she had produced certain documents Ex. D 5 to D 20 and, therefore, in order to rebut the same, it is necessary to summon some witnesses in rebuttal.

A perusal of the paper book reveals that in the civil suit, the learned trial Court framed the following issues on 11.1.2008:

i) Whether sale deed No. 86/1 dated 26.4.2001 is illegal, null, void and liable to be set aside and Plaintiff is owner of suit property? OPP

ii) Whether suit is not maintainable? OPD

iii) Whether Plaintiff has suppressed the true and material facts from the court, if so its effect? OPD

iv) Whether civil court has got jurisdiction to entertain and try this suit? OPD

v) Whether present suit is barred for want of notice u/s 31 of the Punjab Agricultural Produce Market Act, 1961? OPD

vi) Whether Defendant No. 4 is owner in possession of suit property, if so its effect? OPD

It is necessary to mention here that after framing of aforesaid issues, issue No. 1 was re-casted on 23.4.2008 to the effect as to whether sale deed No. 86/1 dated 26.4.2001 is illegal, null and void and liable to be set aside and the Plaintiff is owner in possession of the suit property? OPP:

A perusal of issues No. 1 and 6 reveals that the issue No. 1 was proper and sufficient to decide the list between the parties and issue No. 6 was not even required to be framed because the suit property is one and the same and once the Plaintiff succeeds in proving the issue No. 1 then issue No. 6 will automatically be decided, therefore, it is only issue No. 1, which matters for the Plaintiff and not issue No. 6. Law is well settled that it is for the Plaintiff to prove his or her case by leading cogent affirmative evidence and not to take the benefit of weakness of Defendants. A further perusal of the impugned order reveals that after re-casting of issue No. 1 on 23.4.2008, it was for the Plaintiff to prove that he is owner in possession of the suit property and not to wait for leading the evidence in rebuttal of issue No. 6. After re-casting the issue No. 1, the Plaintiff had produced some documents on record and further opportunity to lead evidence was granted to the Plaintiff but he voluntarily suffered a statement that since he is in possession of the suit property, therefore, he did not want to lead his evidence regarding his possession and in this regard the observations of the learned trial Court made in paragraph 6 of the impugned order are reproduced hereunder:

A perusal of case file reveals that on 23.4.2008 also, the Plaintiff had adduced some documents and further opportunity to lead evidence was given to him on the corrected issue but the Plaintiff suffered a statement in the court that because the Plaintiff is already in possession, therefore, he does not want to lead any evidence on the point of possession and the evidence already led by him on the issue be treated as his evidence on the correct issue also. Similarly, learned Counsel for Defendant No. 4 suffered his statement that he does not want to further cross examine the Plaintiff on this issue.

It is necessary to mention here that the above observations made by the learned trial Court have neither been disputed by the Petitioner in his revision petition nor counsel for the Petitioner has submitted that the same are recorded contrary to record of the case. Thus, the Plaintiff-Petitioner had sufficient opportunity to discharge the onus of issue No. 1 and prove the same by leading his evidence at the appropriate stage but now under the garb of issue No. 6 he wants to fill up the lacuna left in the case, which cannot be permitted at this stage when the case is already fixed for final arguments.

In view of the aforesaid discussion, in my opinion, no illegality or perversity can be found with the impugned order dated 3.3.2011 passed by the learned trial Court warranting any interference under Article 227 of the Constitution.

Dismissed.