RATTAN BALA Vs. KIRAN BALA

JUDGEMENT

(1.) This petition has arisen out of the order dated 20.2.2009 for leading oral as well as documentary evidence in rebuttal to the issues No. 2 to 5 and 4A and 4B (burden of which was on the Defendants) was dismissed.

(2.) The brief facts of the case are that the Petitioner-Plaintiff (herein referred as, 'the Plaintiff) had filed a suit for possession by way of partition of the suit property which is still pending adjudication. The onus to prove issues No. 2 to 5 and 4-A and 4-B was on the Defendant, therefore it was pleaded that she may be allowed to lead evidence on these issues in rebuttal.

(3.) Reply to the application was filed wherein the Defendants Respondents (herein referred as, 'the Defendants') took the preliminary objection with regard to maintainability of the application stating that the present dispute has already stood decided vide order dated 4.11.2008 when the Plaintiff attempted to lead such evidence; the Plaintiff has already produced her entire evidence and the defence pleaded by the Defendants has been dealt with in anticipation, therefore, she could not lead any evidence in rebuttal. On merits it was submitted that the additional issues had been extracted out of the pleadings of the parties about which the Plaintiff was already aware. Knowing fully well about the plea of the Plaintiff, the Defendants adduced evidence in affirmative in order to prove his case as well as to rebut the defence, therefore, the Plaintiff is not entitled to lead any evidence in rebuttal.