Plaintiffs cannot be allowed to lead evidence in rebuttal after closure of their evidence in affirmative.

Kanwaljit Singh Ahluwalia, J.

1. In the present revision petition, defendant to the suit has assailed order dated 9th January, 2010 passed by the trial Court, whereby an application filed by the plaintiff to lead evidence in rebuttal was accepted and he was ordered to deposit the diet-money. Thereafter, an application was filed by defendant on 11th January, 2010 with a prayer that the order dated 9th January, 2010 be recalled. This application was dismissed vide order (Annexure P-2) dated 29th January, 2010 by the trial Court and necessity to lead the evidence in rebuttal by the plaintiffs was upheld.

2. To find out as to whether the impugned order (Annexure P-2) was validly passed or not, it is necessary to revert to the facts of the case.

3. Residents of Green Avenue, Amritsar filed a suit for permanent injunction restraining the petitioner-defendants from running or opening indoor or outdoor hospital, X-ray plant, clinical laboratory or any other activity of commercial or non-residential nature in Kothi No. 104 situated in Mall Maqbool Road Development Scheme Area, primarily on the ground that in the residential area, a hospital cannot be permitted as it is a source of nuisance. Written statement was filed by the defendants to the suit, in para 5 whereof they gave the details of about 56 properties, where hospitals and other commercial ventures were permitted by the local authorities. The plaintiffs led their evidence, before it could be concluded, it was closed by an order of the Court. Thereafter, the defendants led their evidence and examined Narinder Sharma, Head Draftsman, Office of Municipal Town Planner, Amritsar as DW-16. He produced the record of Green Avenue Scheme, Shival Bhawan Scheme and Opposite Railway Station Scheme. This witness was subjected to lengthy cross- examination. After the defendants closed their evidence, an application (Annexure P-3) was filed by the plaintiff to the suit praying that he intended to examine the official from the Municipal Corporation, Amritsar to produce in Court the complete record of Scheme No. 66 of Green Avenue, Amritsar, which was taken-over by Municipal Corporation, Amritsar from Amritsar Improvement Trust. In this application, various other witnesses were sought to be summoned.

4. Mr. Vineet Sharma, Advocate appearing for the respondents, during the course of arguments has stated that he will confine his prayer to production of complete record of Scheme No. 66 of Green Avenue, Amritsar and to prove the same.

5. Mr. Baldev Raj Mahajan, Advocate appearing for the petitioner, has read the issues framed by the trial Court. On all the material issues, onus has been placed upon the plaintiffs. Therefore, there is no doubt that the plaintiffs had to remain vigilant and conscious that it was their duty to prove that the area in question was a residential area and the non-residential/commercial activities could not be carried out therefrom. In the written statement, it has been specifically stated that other persons are also carrying-on commercial activities from 56 properties. Therefore, the plaintiffs were aware of the stand taken by the defendants. It cannot be said that by examination of DW-16, namely Narinder Sharma, any prejudice has been caused to the plaintiff/respondents. Thus, the plaintiffs, after closure of their evidence in affirmative, cannot be allowed to lead evidence in rebuttal in the facts and circumstances of the case. Furthermore, this Court has to notice that the trial Court in a most mechanical manner allowed the application for leading evidence in rebuttal by passing the following order :

"Rs. 50/- be deposited as D.M.

Sd/- ACJ Sr. Divn. 9.1.2010."

Once, having passed this order, the application for recalling of the order has been dismissed, primarily on the ground that the Court has no power to review and the rebuttal evidence is not on a particular issue, but the same is to be produced to negate the evidence produced by the defendants, this reason