Validity of affidavits in rebuttal evidence and the acceptance of only the part relating to the rebuttal of defendant's evidence

S.D.ANAND, J. - The following facts are apparent from the record:

Initially, the evidence of the plaintiffs-respondents was ordered to be closed under the orders of the Court. That order was set aside by this Court, vide order dated 31.03.2006 and the plaintiffs - respondents were afforded one opportunity to produce their entire evidence. Prior to the closure of the evidence of the plaintiffs - respondents, Navdeep Singh (one of the plaintiffs) had appeared as PW1 in affirmative evidence. He did appear, for facing cross-examination, on 09.06.2006, but did not appear thereafter for completion of the cross-examination. It was thereafter that the evidence of the plaintiffs-respondents was ordered to be closed under the orders of the Court. Even after the allowance of the petition by this Court, Navdeep Singh plaintiff-respondent did not appear for cross-examination. However, the affidavits of Navdeep Singh aforementioned and also of one P.S. Sodhi were tendered in rebuttal evidence.

2. The defendant - petitioner raised a plea before the learned Trial Court that the affidavits being relatable to the evidence of the affirmative character could not be validly accepted in rebuttal evidence.

3. The plea did not find favour with the learned Trial Court which held that the plaintiffs-respondents were entitled to tender those affidavits in rebuttal evidence.

4. There can be no controversy about the fact that the affidavits tendered by the plaintiffs-respondents in rebuttal evidence cannot contain averments which pertains to the affirmative character of evidence. It is only that part of the affidavits, which relates to the rebuttal of defendant's evidence, which can be validly tendered into evidence. The learned Trial Court shall accept/consider only that part of the two affidavits which pertains to the evidence of rebuttal character which the plaintiffs-respondents are entitled to adduce in rebuttal of the evidence adduced by the petitioner herein to discharge the onus of issues which they were required to prove. Any part of the contents of those affidavits relatable to the averments of affirmative character would not be accepted in rebuttal evidence.

5. The petition shall stand disposed of accordingly.