Vinayak Traders vs Kapisthal Rice International and Another

Rakesh Kumar Garg, J.—This is defendant''s revision petition challenging the impugned order dated 19.8.2009 passed by the Additional Civil Judge (Sr. Division), Kaithal vide which the plaintiff-respondents have been permitted to lead evidence in rebuttal which was allegedly not permissible in law.

As per averments made in this petition, the plaintiff-respondents filed a suit for recovery which was contested by the petitioner. On the pleadings of the parties, the following issues were framed:

Whether Jagmohan is proprietor of the plaintiff firm and plaintiff firm is entitled to recovery of Rs. 1,84,324/- on account of rice supplied to the defendant with interest at the rate of 18% per annum from 18.12.2003 till its realization? OPP

Whether the suit of the plaintiff is time barred? OPD

Whether this Court has no jurisdiction to try and entertain the present suit? OPD

Whether the suit of the plaintiff is liable to be dismissed in view of special objection No. 3 of written statement filed by the defendant? OPD

Relief.

The onus to prove issue No. 1 was upon the plaintiff-respondent and to discharge that onus, he examined himself as PW-1 and closed his evidence. The defendant-petitioner appeared as his own witness to rebut the evidence led by the respondent and closed his evidence. Thereafter, when the case was fixed for evidence, the respondent moved an application to examine an Expert to prove a document which was objected to by the petitioner on the ground that no evidence on rebuttal can be led as the onus to prove issue No. 1 was on the respondent. However, vide impugned order, the trial Court allowed the said prayer of the respondent.

Challenging the aforesaid order, learned Counsel for the petitioner has vehemently argued that it is well settled that whenever the onus to prove a particular issue is on the plaintiff, he cannot be permitted to lead evidence in rebuttal. From the perusal of the issues as reproduced above, it is clear that the controversy involved in the suit revolves around issue No. 1, the onus of which was on the plaintiff-respondent. The document, which the respondent wanted to produce by examining a expert witness, was always in his possession. Merely because the respondent failed to prove the aforesaid document at the proper time (i.e when he was leading his evidence in the affirmative) he cannot be permitted to lead evidence in rebuttal as the same will amount to giving benefit to the respondent for his own fault.

On the other hand learned Counsel appearing on behalf of the plaintiff-respondent has contended that the document in question was put to the petitioner in his cross-examination and the same was denied by him and therefore, it was only at that stage, the plaintiff-respondent was entitled to move an application for leading rebuttal evidence to prove the aforesaid document. In support of his case, learned Counsel relied upon a judgment of this Court in Malkhan Singh and Ors. v. Ram Pal 2010 (1) Law Herald (P & H) 263.

I have heard learned Counsel for the parties and perused the impugned order and the judgment cited by the learned Counsel for the respondent.

There is no force in the argument raised by the learned Counsel for the respondent. It is well settled that whenever the onus of a particular issue is on the plaintiff, he or she cannot be permitted to lead evidence in rebuttal and the rebuttal evidence can be led by the plaintiff only in those issues where the onus to prove the issue is on the defendant.

In the present case, the rebuttal evidence sought to be adduced vide impugned order was under issue No. 1 and the onus to prove the said issue was upon the plaintiff-respondent. Admittedly, the plaintiff-respondent had already closed his evidence in the affirmative and even the petitioner had closed his evidence in rebuttal. Moreover, the document sought to be proved by the respondent was always in his custody and to his knowledge and the same could have been proved by him while leading his evidence in the affirmative. It is well settled that no one can be given benefit of his own fault. Thus, the plaintiff-defendant cannot be allowed to fill up the lacuna left by him in his case by allowing him to lead rebuttal evidence on a issue on which onus to prove was upon him and the evidence had already been closed in the affirmative. I find support from the judgment of this Court in the case of Surjit Singh v. Jagtar Singh (DB) 2006 (2) PLJ 342 to support my view.

The judgment cited by the learned Counsel for the respondent does not support the the case of the plaintiff-respondent in any manner in the facts and circumstances of the case. In that case, the plaintiff had filed a suit for possession by way of specific performance for an agreement to sell. The defendant in his written statement had pleaded that he never executed agreement and in fact, some blank papers signed by him were manipulated. The plaintiff led evidence in the affirmative. Thereafter, the defendant led the evidence. While the case was fixed for rebuttal evidence, the defendant moved an application under Order 18 Rule 3 of the CPC for not permitting the plaintiff to lead the evidence in rebuttal on affirmative issue No. 1. The said application was dismissed by the trial Court against which revision petition was filed before this Court. It may be pointed out that in the aforesaid case, the defendant had produced the handwriting expert to examine the agreement in question and the receipt. In rebuttal, the plaintiff wanted to lead rebuttal evidence to examine handwriting expert to depict that signatures of the defendant on the agreement in question tally with his signatures on some receipts produced by the defendant himself who admitted his signatures thereon and in those circumstances, the plaintiff-petitioner in that case was allowed to examine the expert witness in rebuttal. Thus, the facts of the aforesaid case cited by the learned Counsel for the appellant were altogether distinguishable and therefore, the plaintiff-respondent cannot derive any help from the aforesaid judgment.

Thus, finding merit in the argument of the learned Counsel for the petitioner, I accept this revision petition and set aside the impugned order.

No costs.