Pappu @ Rai Singh vs Smt. Chander Wati and others

Rajesh Bindal, J.—The plaintiff is before this court challenging the order dated 4.10.2011, passed by the learned court below whereby the prayer made by him for permission to lead additional evidence/ evidence in rebuttal, was declined. Briefly, the facts are that the petitioner-plaintiff filed a suit for specific performance of agreement to sell dated 15.1.2002 in which issues were framed on 17.8.2006. The petitioner-plaintiff concluded his evidence. The respondents also led their evidence. At that stage, the petitioner filed an application for seeking permission to lead additional evidence/ rebuttal evidence. The prayer was declined by the learned court below. The order has been impugned before this court.

Learned counsel for the petitioner submitted that from the pleadings of the parties, the learned court below has framed six issues. The onus of the issue "as to whether deceased Moji Ram had entered into an agreement to sell on 15.1.2002 with the plaintiff" was on the petitioner-plaintiff, whereas the onus of issue No. 5 "as to whether the aforesaid agreement to sell is a result of fraud and misrepresentation" was on the defendants. In discharge of the onus on the petitioner, he had led evidence and examined witnesses to the agreement to sell to prove the same. The onus of issue No. 5 was on the defendants. In discharge thereof, they had produced handwriting expert. To the evidence led by the defendants on that issue, the petitioner is entitled to rebut the same. As it is only the party on whom a burden is put, is to lead evidence first on that issue, the petitioner could not pre-suppose the evidence to be led by the respondents in discharge of burden put on them on issue No. 5. It is only after the evidence is led by that party first that the opposite party gets right to lead evidence in rebuttal on that issue. In support of the arguments, reliance was placed upon a judgment of this court in Pawan Kumar v. Surinder Pal and another, 2009 (3) CCC 380.

On the other hand, learned counsel for the respondents submitted that in fact, issues No. 1 and 5, were together. The primary case of the petitioner-plaintiff is that deceased-Moji Ram had entered into an agreement to sell with him, the specific performance of which was sought by him. In discharge of the burden, whatever evidence was required, should have been led by the petitioner-plaintiff at the first instance. Merely because in defence the respondents have led evidence in the form of a report of handwriting expert, the same will not entitle the petitioner to lead additional or rebuttal evidence.

Heard learned counsel for the parties and perused the paper book.

On the pleadings of parties, the learned court below had framed the following issues:

Whether Mauji Ram ancestor of defendants No. 1 to 7 had entered into an agreement to sell on 15.1.2002 with respect to the suit property as detailed in para No. 1 of the plaint in favour of the plaintiff ? OPP

Whether plaintiff has been ready and willing to perform his part of the contract ? OPP

Whether suit of the plaintiff is not maintainable ? OPD

Whether plaintiff has no locus standi and cause of action to file the suit ? OPD

Whether agreement dated 15.1.2002 is result of fraud and misrepresentation and is not binding upon the defendants ? OPD

Relief.

A perusal of the aforesaid issues shows that onus of issue No. 5, namely, as to whether the agreement to sell dated 15.1.2002 is a result of fraud and misrepresentation was on the defendants. In discharge of burden on them, they had produced handwriting expert. The petitioner is seeking to rebut the evidence led by the defendants in discharge of the onus on them on issue No. 5. The cause of action to lead evidence in rebuttal will arise only if the defendants lead any evidence in affirmative on the issue, the onus of which is on them.

The stand of learned counsel for the respondents-defendants that it was incumbent on the petitioner-plaintiff to have produced the expert witness at the initial stage, considering the stand of the respondents-defendants in the written statement that the alleged agreement was a forged and fabricated document, has no legs to stand, as the issues were framed by the learned trial court considering the pleadings of the parties and the onus was put accordingly. Unless a party leads evidence in support of the plea raised by him in terms of the onus put on him as per the issues framed, no evidence in defence can possibly by led.

A similar issue was considered by this Court in Civil Revision No. 4087 of 2006 -Jai Narain v. Satya Narain and others, decided on 27.8.2007. The relevant part thereof is extracted below:

In Naranjan Singh vs. Ajaib Singh and another, 2006 (1) PLR 789, this Court while considering a similar issue held that by fiction of law, the defendant is to be treated as plaintiff for the issues, the onus of which is on him and the plaintiff has right to rebut the evidence led by the defendants on those issues and there is no requirement of any law that the plaintiff is required to even reserve his right to controvert the evidence of defendants. The issue has also been gone into by the Rajasthan High Court in L.M.P. Precession Engineering Co. (P) Ltd. Vs. Ram Narayan, AIR 2004 Raj 37, wherein it was held that in a suit where a number of issues are framed and the onus thereof is on either party and in case while discharging his onus on certain issues, the plaintiff touches some issues, the onus whereof is on the defendants, it cannot be said that plaintiff has led his evidence on those issues, thereby depriving him to lead evidence in rebuttal. Each case has to be considered on its own facts. The relevant extract of the judgment in L.M.P. Precession Engineering Co. (P) Ltd.''s case (supra) is as under:

It will be worthwhile to mention here that the trial Court framed total six issues and burden o prove two issues was upon the plaintiff, which are (i) whether the Court has jurisdiction to hear the suit and another is (ii) whether the plaintiff is entitled for decree of rendition of account against the defendant. A bare perusal of the averments made in the plaint and particularly the relief claimed by the plaintiff in the suit, it is clear that the entire relief of the plaintiff is only that the plaintiff is entitled for the decree for rendition of account against the defendant and consequently, the plaintiff is entitled for the amount, which is found due in the defendant of the plaintiff. This issue covers the entire suit itself, which includes all the facts mentioned in the plaint on the basis of which plaintiff becomes entitled to relief. It appears from the detail evidence of the plaintiff that the plaintiff led evidence in detail to prove this issue and in that sequence he narrated the entire sequence on the basis of which the plaintiff is claiming the relief against the defendant. When such a situation arises where there are two sets of issues; one putting burden upon the plaintiff to prove the issue and another putting burden upon the defendant and in that situation, if some of the subjects required to be covered to prove issue by the plaintiff by giving evidence or even for the purpose of making the evidence clear so that the case may be well understood by the court and to make the things clear, if plaintiff leads evidence to prove his case, in all those cases, it is not possible to hold that the plaintiff has touched the issues, burden of which was upon the defendant. It depends upon the facts of each case.

The proving of an issue by the defendant depends upon the specific plea taken in defence by the defendant and that burden can be discharged by the defendant by proving his case by his evidence and then the plaintiff can rebut those issues of the defendant by leading evidence. Sometime, it happens that one issue is framed placing burden upon the plaintiff and another issue may be an issue of rebuttal of the issue framed for plaintiff, then in that case, the plaintiff if leads evidence to prove his case, it is not necessary to say that he led evidence to meet with the defence of the defendant because of the reason that the plaintiff has right to prove his case and for that purpose he may not take risk of not proving his case on his assumption that the facts pleaded may be treated as admitted by the defendant by the Court, which may be disputed or may be interpreted subsequently in otherwise way on the basis of the pleas of the defendant. Therefore, what evidence the plaintiff has led on the issues and whether the plaintiff touched the issue of the defendant depends upon the facts of the case and no formula can be provided for deciding the matter.

After hearing the learned counsel for the parties and considering the legal position as discussed above, I find merit in the contention raised by learned counsel for the petitioner. In the present case, it is not in dispute that the onus of the issues No. 5 and 12 is on the defendants-respondents. If during the course of leading evidence on the issues, the onus whereof was on the plaintiff, any statement was made with regard to issues the onus of which is on the defendants, the same shall not mean that plaintiff had infact led or concluded his evidence on those issues as it is only after the defendant has led his evidence that plaintiff will come to know the same and get an opportunity to rebut the same. Plaintiff cannot presuppose the evidence which is to be led by the defendant on the issues, the onus whereof is on him. Even otherwise procedural law is subservient to the cause of justice.

Similar view was expressed in Ranjit Singh v. Mehfil Restaurant. 2008 (2) Civil Court Cases 225 (P&H). Relevant paragraph 11 thereof is extracted below:

In case the principles enunciated in the above referred cases are applied in the fact and circumstances of the present case, the same would support the plea raised by the petitioner. Firstly, the evidence which is in the form of vouches showing refund of the loan amount given by the petitioner-plaintiff to the respondent/defendant were exhibited by the respondent/defendant in his evidence and it was only thereafter the petitioner gets an opportunity to rebut those documents to prove his case and demolish the case set up by the respondent/defendant. Prior to that it was only that these documents were confronted to the petitioner in his cross-examination and were merely put on record and marked. The same without having formally proved on record were not to be read in evidence and for that reason, the petitioner in the facts and circumstances of the case, rightly thought not to rebut the same at that stage. In his evidence, the respondent/defendant may or may not have exhibited these documents in defence. Secondly these documents were not only proved in evidence in rebuttal to the evidence led by the plaintiff/petitioner on issue No. 1 rather on issue no. 3 as well where respondent/defendant had pleaded in the written statement that the petitioner/plaintiff had not approached the court with clean hands. Once an issue the onus of which initially was on the defendant, the plaintiff certainly has right to rebut the evidence led by the defendant on that issue.

In view of my aforesaid discussion, the prayer made by the petitioner for permitting him to lead evidence in rebuttal in response to the evidence led by the defendants in discharge of burden passed on them on issue No. 5, deserves to be allowed. Accordingly, the impugned order passed by the learned court below is set aside and the petitioner be afforded opportunity to lead evidence in rebuttal, specific to issue No. 5. The petition stands disposed of.