The plaintiff can only lead rebuttal evidence on issues where the onus of proof lies on the defendant, and the plaintiff can reply generally on the whole case only in specific circumstances.

Deepak Gupta, J.

This petition is directed against the order dated 30.11.2010 passed by the learned Civil Judge (Sr. Division) Kasauli, District Solan whereby he rejected the application filed by the petitioner (hereinafter referred to as the ‘defendant’) and permitted the plaintiffs-respondents to lead evidence generally on the whole case, i.e., on all the issues framed. To understand the controversy between the parties, it would be pertinent to mention that the following issues were framed on 6.4.2005:-

1. Whether the plaintiffs are owner in possession of the suit land? OPP

2. Issue No.1 is proved in affirmative, whether the plaintiff is entitled for decree for permanent injunction as prayed for? OPP

3. Whether the order passed by the learned Divisional Commissioner and Ld.Financial Commissioner is wrong, null and void.?OPP

4. Whether the plaintiff has no locus standi to file the present suit as alleged? OPD

5. Whether the suit is not maintainable in the present form? OPD

6. Whether the suit is bad for non-joinder of necessary parties? OPD.

7. Relief. The onus to prove the first three issues was on the plaintiffs and onus to prove issues No. 4 to 6 was on the defendants. The plaintiffs led evidence on the first three issues and closed their evidence in the affirmative on 7.3.2008. The defendants thereafter led evidence and closed their evidence on 4.8.2010. Thereafter, the plaintiffs filed affidavits of S/Sh. Bishan Singh, Hem Raj, Bala Dutt and also filed a list of witnesses of as many as 7 witnesses to be examined in rebuttal. Then the defendants filed an application claiming that the plaintiffs had no right to lead rebuttal evidence on issues No.1 to 3 and submitted that issues No. 4 to 6 were legal in nature and no rebuttal evidence was required to be led.

It would also be pertinent to mention that during the course of the hearing of this application, the learned counsel for the defendants made a statement that as far as issue No.4 is concerned, the defendants do not press this issue and as far as issues No.5 and 6 are concerned, they are wholly legal issues and as such the plaintiffs are not entitled to lead rebuttal evidence.

The learned Trial Court relying upon the judgment of the Punjab & Haryana High Court in M/s.Punjab Steel Corporation, Batala Vs. M.S.T.C. Limited, Calcutta, 2000 (1) Punjab Law Reporter, 99 came to the conclusion that the plaintiffs are entitled to lead evidence generally on the whole case and, therefore, dismissed this application filed by the defendants. Hence the present petition.

I have heard Sh.Partap Singh Goverdhan, learned counsel for the petitioner and Sh.P.C. Sharma, learned counsel for the respondents. The main issue involved in this case is with

regard to the interpretation of order 18 Rule 3 CPC which reads as follows:-

“Evidence where several issues.-Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.”

According to the learned Trial Court and which version is supported by Sh.P.C.Sharma, Advocate, when a party beginning is given a right to lead evidence in rebuttal, it can reply generally on the whole case and in this regard support is drawn from the last portion of order 18 Rule 3 CPC.

Sh.P.C.Sharma has also drawn my attention to the judgment of a Division Bench of the Punjab & Haryana High Court in Jaswant Kaur & Anr. Vs. Devinder Singh & Ors, AIR 1983 Punjab & Haryaa 210. Para 12 and 13 relied upon by the learned counsel reads as follows:-

“12. To conclude, I would