Kuldeep Kaur vs Jasbir Kaur and Others

Dr. Bharat Bhushan Parsoon, J.—Both these civil revision petitions are being decided together as these have common facts and circumstances and are inter-connected. For convenience and clarity, facts have been taken from Civil Revision Petition No. 2376 of 2012. Vide order dated 20.3.2012 (Annexure P-1) whereby prayer of the petitioner-plaintiff to appear as her witness in rebuttal to issue No. 2 (Annexure P-2) was declined, forms the genesis of this civil revision petition under Article 227 of the Constitution of India.

It is claimed that onus of issues and in particular issue No. 2 qua the Will had been changed from the petitioner-plaintiff to the respondents-defendants. Since the defendants had propounded the Will and they were to lead evidence on this score, it is claimed that right of production of evidence in rebuttal had accrued to the plaintiff and such right could not be denied to her. It is claimed that merely because the suit was at the final stage of conclusion and arguments were being addressed was not a ground to stop the petitioner-plaintiff in proving her rights from evidence produced and to be produced by her.

Counsel for the respondents, on the other hand, has urged that even if on change of onus for proving some of the issues, burden of proof had fallen on the defendants, it would not call for production of evidence by the petitioner-plaintiff in rebuttal, particularly when no evidence had been led by the defendants on the re-framed issues onus of proving which issues had been placed on the defendants.

Hearing has been provided to the counsel for the parties while going through the paper book.

At the outset, it may be mentioned that suit for declaration with consequential relief of permanent injunction is pending adjudication before the lower court since 14.8.2002. After conclusion of evidence by the parties when the arguments on merits were being heard on 17.3.2012, onus of issue No. 2 which earlier was placed on the plaintiff vide order dated 15.2.2003 of the lower court, was put on the defendants whererafter the said issue had read as under:

"Whether Sant Kaur executed Will dated 28.5.1990 in favour of Avtar Singh, as alleged? OPD"

It is a conceded fact that parties have already concluded their evince and arguments were being advanced. Parties have gone to trial knowing their cases well and had also taken into consideration the rival claims put forth by them in the suit. Even though none of the parties had objected to the sum and substance of the issues as also of placing of onus determined vide order dated 15.2.2003, the lower court to put the record straight had recast the issue as above placing onus of the same on the defendant, though sum and substance of the issue had remained the same. When entire evidence has already been led, mere recasting of an issue does not change the situation and claim of the plaintiff to lead rebuttal evidence to this issue when arguments are already in progress after completion of evidence by the parties and in fact concededly have been heard on 17.3.2012 and 20.3.2012, has no merit.

Viewing from another angle, the defendants are not leading any further evidence after recasting of the issue though onus of issue No. 2 has been placed on the defendants. Merely because affirmative evidence was concluded by the plaintiff does not change the situation because after leading of evidence by the defendants, evidence has also finally been concluded. Even arguments have been heard partly. The lower court has dealt with the entire aspect clearly and transparently. Relevant portion of the impugned order is reproduced as below:

"Issues were framed by my ld. Predecessor way back on 15.2.2003 and issue No. 2 was framed as ''Whether Sant Kaur executed Will dated 28.5.90 in favour of Avtar Singh as alleged? OPP.'' None of the party had objected to onus for nine long years. Detailed evidence has led by both the parties. Firstly, plaintiff availed his turn then defendant led the evidence and then plaintiff led the rebuttal evidence. Thereafter, arguments were heard partly, during which this issue has been cropped up resulting in recasting of the issue. Recasting of issue was done by this court as there could not have been two views that onus to prove the Will is upon propounder and onus was shifted upon defendant. In such circumstances, defendant could have availed opportunity to lead evidence since onus has been shifted upon him but defendant got recorded his statement that he does not want to lead any evidence. If defendant does not want to lead any evidence, question of allowing the plaintiff to lead evidence to rebut this issue does not arise at all. It is not that plaintiff has not understood the implication of issue or issue as such. For nine years she continued with the trial and never objected that onus has been casted upon her. If onus has been shifted to opposite party, rather it facilitate her. She cannot be allowed to re-open the entire case by availing opportunity to lead evidence on issue No. 2 onus of which is now upon defendant. When defendant does not want to lead any evidence, no question of its rebuttal by plaintiff does arise."

The authority titled Rattan Bala Vs. Kiran Bala and Others, cited by the counsel for the petitioner-plaintiff, does not apply to the facts of the case because in the cited authority, one additional issue was framed, onus of which was on the defendant and the plaintiff had not led any evidence thereon as the same was non-existent earlier, whereas in the case in hand, issue No. 2 was already there. Moreover, evidence has been completed by the parties; arguments have already been addressed on two dates of hearing and only onus of proving issue No. 2 had been recast on the defendant. Clearly, intention of the plaintiff is to further delay and dilate the matter which is already hanging fire since 14.8.2002. Sequelly, this authority does not help the cause of the petitioner-plaintiff.

Counsel for the respondents, on the other hand, has cited Surjit Singh and others v. Jagtar Singh and others, 2007(2) Civil Court Cases 115 (P&H). In this Division Bench judgment, making reference to Order XVIII Rule 3 CPC, it was held that the plaintiff has right to lead rebuttal evidence only if such right is reserved by the plaintiff before the other party had begun its evidence. In the present case, rather, complete evidence has already been led by the parties and there was no reservation of right to lead rebuttal evidence by the plaintiff.

Keeping in view the totality of facts and circumstances as discussed earlier, when the impugned orders take care of claim of both the parties and do not suffer from any factual or legal error, affirming the same, both these petitions, being devoid of any merit, are dismissed.

Parties are directed to appear before the lower court on 9.10.2014.

Since the suit has already been considerably delayed, the same would be decided by the lower court within one month from the date of receipt of certified copy of this order, even by conducting day to day proceedings, if found necessary. Nothing observed above shall have any bearing on the merits of the suit pending before the lower court.