VIJAY GOENKA Vs. ALLWYN ENTERPRISES (INDIA)

JUDGEMENT

(1.) THIS order will dispose of the above mentioned two revision petitions preferred against order dated 22.11.2011 passed by the trial court, whereby two applications, one preferred by defendant/petitioner for de -exhibiting certain documents and another filed by plaintiff for framing of additional issue, have been disposed of.

(2.) MR . Rawal, learned senior counsel for petitioner has assailed the order. According to him, trial court ought to have allowed the application for expunging examination -in -chief of an official of PSIEC and de -exhibiting the documents tendered by him. He further contends that this evidence could have only be led in affirmative by the plaintiff. At the stage of rebuttal he could not be allowed to exhibit the document in question. He has relied upon judgment reported as Surjit Singh and others vs. JagtarSingh and other, 2007 (1) R.C.R. (Civil) 537. He has also urged that trial court has erred in allowing the application for framing of additional issue at the fag end of the trial.

(3.) I have heard learned counsel for the parties and given careful thought to the facts of the case. Plaintiff (respondent No.1 herein) filed a suit seeking a declaration that transfer of an industrial plot at Focal Point, Phase V -Dhandari Kalan, Ludhiana by defendant No.4 in favour of defendant No.1 and further transfer by defendant No.1 in favour of defendant No.2, was illegal and invalid. He also sought consequential relief of mandatory/permanent injunction and also sought possession of the plot in question. Plaintiff led evidence in affirmative. It thereafter, reserved its right to rebut the evidence. During the trial defendant No.2 deposed as DW7. He was cross -examined by the plaintiff. As the trial reached the stage of rebuttal evidence, one witness namely, Devinder Kumar, a Senior Assistant in PSIEC was summoned to prove certain documents. Aggrieved, defendant/petitioner moved application for expunging the examination -in -chief of said witness and to de -exhibit the documents. Plaintiff on the other hand, sought framing of an additional issue. Trial court found that issue 'whether defendant was a bonafide purchaser for consideration', was an integral part of the controversy and defendant No.2 had already led evidence in support thereof. At the time of framing of issues, inadvertently no issue about the defendant being bonafide purchaser, could be framed. It, thus, allowed framing of additional issue in this regard and declined the prayer for de -exhibiting documents tendered by defendant No.2. As onus of proving additional issue was on the defendant and defendant had already led evidence in support thereof, plaintiff was given an opportunity to rebut the same. I find no infirmity with the order. The judgment in Surjit Singh's case (supra) relied upon by counsel for the petitioner is not applicable to the facts of the case. In said case, the issue for consideration before the court was whether plaintiff could be allowed to lead evidence in rebuttal on an issue, onus of proof of which was on plaintiff himself. The question was answered in negative. In the instant case, onus of proof of additional issue was on defendant and his evidence regarding same is already on record. Plaintiff was, thus, given an opportunity to lead evidence in rebuttal. Admittedly, after completing his affirmative evidence, plaintiff had reserved his right to rebut defendant's evidence. In Pawan Kumar's case (supra), it has been held as under: -