Rebuttal Evidence - Plaintiff has no inherent right to lead evidence in rebuttal on issues in which the onus of proof is on the plaintiff.

S.S.NIJJAR, J.

1. This Civil Revision has been referred to D. B., in view of the divergent views expressed in some single Bench decisions of this Court on the interpretation of Order 18, Rule 3 of the Code of Civil Procedure (hereinafter referred to as "CPC"). A number of Civil Revisions i.e. CR No. 92 of 2004, 59, 1813, 2992, 3066 of 2005, 286, 287 and 2970 of 2006 have been admitted to be heard along with this CR No. 1213 of 2005. This order will dispose of all the aforesaid Civil Revisions as the law points involved in all the aforesaid Civil Revisions are identical.

2. We have to consider the scope and ambit of the right of the plaintiff to lead evidence in rebuttal, on issues the onus of proof of which is on the plaintiff.

3. We reproduce the entire reference in order to obviate the repetition of the salient facts which are necessary for the adjudication of the reference, as under :-

"Hemant Gupta, J. The defendants are in revision petition aggrieved against the order passed by the learned trial Court permitting the plaintiffs to lead expert evidence in rebuttal.

The dispute in the suit relates to the estate of Kabal Singh who died on 13-6-1997. His daughter Jaspreet Kaur sold her ¼th share in the land measuring 111 kanals 7 marlas vide sale deed dated 10-10-1997. The said sale was challenged by the plaintiffs on the basis of Will dated 6-4-1997, allegedly, executed by Kabal Singh in favour of his three sons i.e. the plaintiffs excluding his daughter i.e. defendant No. 4. The trial Court has framed the following issues :-

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

2. Whether Kabal Singh executed a valid Will dated 6-4-1997 in favour of the plaintiff ? OPP

3. Whether the defendants have validly purchased the suit land vide sale deed dated 10-10-1997 ?

4. Whether Jaspreet Kaur was minor at the time of sale, if so, its effect ? OPD

5. Whether the suit is properly valued for purposes of court fee and jurisdiction ?

6. Relief."

4. The plaintiffs closed their evidence on 19-12-2003 after examining four witnesses. The defendants closed their evidence on 4-5-2004. The case was adjourned for rebuttal and arguments. At the stage of rebuttal, the plaintiffs sought examination of finger print and handwriting expert to prove the signatures of Kabal Singh on Will dated 6-4-1997. The affidavit of expert along with report was tendered in Court but the same was resisted by the defendants on the ground that the onus to prove Will was on the plaintiffs. The plaintiffs have led evidence in affirmative and, therefore, cannot be allowed to lead evidence in rebuttal in respect of issue, the onus of which was on the plaintiffs. However, the learned trial Court declined such application on the ground that no prejudice is going to be caused to the respondents if the plaintiffs were to examine expert witnesses in the present case.

5. The learned counsel for the petitioners, at the outset, submitted that in some cases this Court has taken view that the plaintiffs are entitled to lead evidence in rebuttal even in respect of the issue the onus of which was on the plaintiffs. But the said judgments of the learned single Bench of this Court does not lay down correct principles of law. He relies upon other judgment of this Court reported as Joginder Singh V/s. Baru Mal, 1990 (2) SLJ 775, Gurnam Singh V/s. Jit Singh, 1999 (2) Civil Court Cases 583; Dinesh Kumar V/s. State of Haryana, 2003 (1) Indian Civil Cases 143 : (AIR 2003 P&H 73) to contend that the contradiction in the view requires to be resolved by a larger Bench.

6. He also relies upon single Bench judgment of the Bombay High Court reported as P T. Anklesaria V/s. Union of India, 1974 (76) Bombay Law Reporter 688 to contend that the words occurring in Rule 3 of Order 18 of the Code of Civil Procedure "party beginning will then be entitled to reply generally on the whole case" are words not permitting the plaintiffs to lead evidence but such words rela