Mr. A.N. Jindal, J.: - This petition assails an order dated 06.02.2012 passed by the trial Court, allowing the application filed by the defendants-respondents for striking off the evidence (examination-in-chief) of Dr. Rajesh Vergiya (PW- 5), Dr. Jagjit Singh Ahuja (PW-6), Dr. Kiran Bala (PW-7) and Jeet Singh (PW-8).

2. Plaintiff-petitioner (hereinafter referred as ‘the petitioner’) filed a suit for declaration claiming herself to be a joint owner to the extent of 1/3rd share in the suit land and also for permanent injunction restraining the defendants from transferring the property in any manner. The suit was contested by the defendants-respondents (hereinafter referred as ‘the respondents’). The trial Court, vide order dated 04.03.2008 had framed the following issues:-

“1. Whether the plaintiff is co-sharer in joint possession of 1/3rd share of suit land? OPP

2. Whether plaintiff is entitled for declaration as prayed for? OPP

3. Whether plaintiff is entitled for permanent injunction as prayed for? OPP

4. Whether suit is not maintainable in present form? OPD

5. Whether suit is false, frivolous and defendants are entitled for special costs? OPD

6. Whether plaintiff has not come to the Court with clean hands? OPD

7. Whether suit is bad for misjoinder and non-joinder of necessary parties? OPD

8. Whether plaintiff is estopped from filing the present suit by his own act and conduct? OPD

9. Whether Joginder Singh executed a legal and valid Will dated 03.07.2000 in favour of Gurpartap Singh? OPP

10. Relief.”

3. The onus of issue Nos.5, 6, 7 and 8 was upon the respondents, over which, they had to lead evidence. The respondents concluded their evidence on 01.03.2011. In order to rebut the evidence, the petitioner examined the aforesaid witnesses (PW-5 to PW-8) in chief and also tendered some of the documents on 14.03.2011 in order to rebut the evidence led by the respondents in support of issue No.1. However, the Court later on, on the application of the respondents, struck off the evidence of these witnesses and refused to entertain the documents produced by them.

4. Heard. It may be pertinent to mention here that while contesting the suit, the respondents had set up a plea that Joginder Singh had executed a valid Will dated 03.07.2000 in favour of Gurpartap Singh. As such, issue No.9, as referred to above, was also framed by the Court, the onus of which, was upon the defendants-respondents, but the trial Court had wrongly fixed the onus upon the petitioner. However, since the Will was set up by the respondents, therefore, they had led evidence on the basis of the Will and petitioners had examined the aforesaid five witnesses and tendered some documents in order to shift the said onus. Thus, the evidence, which the petitioner could not lead to shift the onus of issue regarding Will and other issues in affirmative, could not be struck off merely by saying that she cannot be permitted to lead evidence in rebuttal on the issue, of which the burden of proof was on her.

5. Similar observations were made by this Court in case Rattan Bala Vs. Kiran Bala & others, 2011 (3) Civil Court Cases 120 (P&H), wherein it was observed as under:-

“14. The Karnataka High Court in one of its judgment took a serious view of the matter that in case of additional issues, it could not be expected from the Court to disallow the parties to lead evidence. The Karnataka High Court in its judgment delivered in case Perikal Malappa v. T.Venkatesh Gupta, 2006 (4) Civil Court Cases 320 (Karnataka): 2007(5) RCR (Civil) 252 observed as under:-

“16. Bases on the issues framed by the Court, the parties may lead evidence. Whenever additional issues are framed by a Court at the stage of judgment, it is the duty of the Court to hear the parties on additional issues and to proceed further in the matter. No Court is expected to proceed for judgment without giving opportunity to the parties as it amounts to infringement of principles of natural justice.

17. But, unfo