ABDUL HALIM Vs. NISAR

JUDGEMENT

(1.) THE petitioner-plaintiff has filed the present petition challenging the order dated 20.7.2007, passed by the Additional Civil Judge (Sr.Div)Karauli, District Karauli, (hereinafter referred to as the trial court), whereby the trial court has allowed the application of the respondents-defendants and not permitted the petitioner to lead the evidence in rebuttal.

(2.) IN the instant case, it appears that the petitioner-plaintiff has filed the suit against the respondents-defendants in which both the sides have led their respective evidence. The petitioner-plaintiff thereafter submitted an affidavit for leading the evidence in rebuttal, which was objected to by the respondents-defendants. The said application of the respondents has been allowed by the trial court vide the impugned order and the petitioner has not been permitted to lead the evidence in rebuttal.

(3.) HAVING regard to the submissions made by the learned counsels for the parties and to the impugned order passed by the trial court, it appears that the petitioner had not reserved his right to lead evidence in rebuttal,however submitted an affidavit in the form of rebuttal evidence after the evidence of the respondents-defendants was over. As rightly submitted by the learned counsel for the respondents, if the petitioner-plaintiff had not reserved his right to lead evidence in rebuttal and when there was no burden on the defendants to prove any issue, the plaintiff, would not be entitled to lead evidence in rebuttal in view of provisions contained in Or. XVIII(3) of C.P.C. It is settled legal position that the evidence in rebuttal can not be permitted, to fill up the lacuna. In the instant case, the burden of proving all the issues was on the petitioner-plaintiff and not on the respondents-defendants, hence the petitioner-plaintiff was expected to lead all his evidence in support of his case at the first instance only. When the evidence of the respondents-defendants is over, plaintiff-petitioner can not be permitted to lead the evidence in rebuttal to fill up the lacuna, more particularly, when no right was reserved by him for leading the evidence in rebuttal.