A plaintiff cannot lead evidence in rebuttal as a matter of right on an issue the onus of which is on a defendant, and must reserve the right to do so when his evidence is closed.

JUDGMENT

Alka Sarin, J. - The challenge in the present revision petition is to the order dated 23.08.2017 (Annexure P-1) passed by the Trial Court dismissing the application of the defendant-petitioner for taking off the file the evidence tendered in rebuttal by the plaintiff-respondent.

2. The facts in brief, as available from the paper-book and copies of the zimni orders supplied by counsel, are that in March 2011 the plaintiff- respondent filed a suit inter-alia for possession by way of specific performance of agreement to sell dated 23.05.2005 or in the alternative for recovery of damages along with interest. The defendant-petitioner filed a written statement denying the execution of the agreement to sell and pleaded that it was a forged and fabricated document. On 11.04.2014 the Trial Court framed the following issues :

1. Whether the plaintiff is entitled to possession by way of specific performance as prayed for ? OPP

2. Whether the plaintiff is entitled to permanent injunction as prayed for ? OPP

3. Whether the suit of the plaintiff is not maintainable? OPD

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

5. Whether the plaintiff has no cause of action to file the present suit ? OPD

6. Whether the agreement to sell dated 23.05.2005 is forged and fabricated document ? OPD

7. Relief.

3. Vide order dated 28.07.2016 the Trial Court closed the evidence of the plaintiff-respondent except the cross-examination of PW1. The order dated 28.07.2016 reads as under :

"PW-1 Paramjit Singh is present and partly cross- examined. His further cross-examination is deferred on request of witness as he is not feeling well. Now case stands adjourned to 10.08.2016 for further cross- examination of PW-1. Remaining plaintiff evidence is closed by order except cross-examination of PW-1. It is further made clear that only one last opportunity is granted to both the parties to conclude the cross- examination of this witness."

4. The cross-examination of PW1 was completed on 10.08.2016 and the suit was adjourned for the evidence of the defendant-petitioner. The evidence of the defendant-petitioner was closed on 17.11.2016 and the suit was fixed for 23.11.2016 for rebuttal evidence if any. On 25.01.2017, PW3 Gurmeet Kaur (Handwriting and Finger Print Expert) was examined in chief in rebuttal evidence. On 15.03.2017, when the suit was fixed for cross- examination of PW3, the counsel for the defendant-petitioner objected that she could not be examined in rebuttal evidence without prior permission of the Trial Court. On 02.05.2017 the counsel for the defendant-petitioner moved an application (Annexure P-2) for taking off the file the evidence tendered in rebuttal by the plaintiff-respondent and for closing his evidence by order. The plaintiff-respondent filed a reply (Annexure P-3) and contested the said application. Vide impugned order dated 23.08.2017 (Annexure P-1) the Trial Court dismissed the said application. Hence, the present civil revision petition under Article 227 of the Constitution of India.

5. Learned counsel for the defendant-petitioner would contend that the impugned order passed by the Trial Court is patently illegal and against the provisions of CPC. According to her, the plaintiff-respondent did not reserve his right to lead evidence in rebuttal at the time when his evidence was closed by order and, as such, he could produce rebuttal evidence as a matter of right. Reliance was placed upon Division Bench decisions in Surjit Singh & Ors. vs. Jagtar Singh & Ors. [2007 (1) RCR (Civil) 537] and Avtar Singh & Anr. vs. Baldev Singh & Ors. [2015 (5) RCR (Civil) 625]. She further submitted that the defendant-petitioner had taken a specific plea in his written statement that the agreement to sell was a forged and fabricated document and an issue in this regard was also framed. However, while leading his evidence the plaintiff-respondent did not produce any handwriting expert. It was after the defendant-petitioner had produced