The plaintiff cannot lead evidence in rebuttal as a matter of right on an issue the onus of which is on the defendant-respondent, and must reserve the right to do so.

JUDGMENT

Alka Sarin, J. (Oral) - The present revision petition under Article 227 of the Constitution of India has been filed for setting aside the orders dated 13.02.2014 and 24.12.2015 whereby the Trial Court closed the evidence of the petitioner by order and further did not allow the petitioner to tender the affidavit of Billi Mahant as RPW1/A in rebuttal evidence.

2. The brief facts relevant to the present lis are that the plaintiffpetitioner filed a suit for declaration to the effect that writing dated 25.10.2010 propounded by the defendant-respondent is illegal, null and void and ineffective qua the rights of the plaintiff-petitioner.

3. On the basis of the pleadings, the following issues were framed by the Trial Court :

1. Whether the plaintiff is entitled to the declaration as prayed for ? OPP

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

3. Whether the defendant is entitled to permanent injunction as prayed for in counter claim ? OPD

4. Relief.

4. The evidence of the plaintiff-petitioner was closed by order on 13.02.2014. An affidavit of the plaintiff-petitioner had earlier been filed as PW-1/A while leading the evidence in affirmative.

5. The defendant-respondent led his evidence on issue No.3, the onus of which was on the defendant-respondent. In rebuttal, the plaintiffpetitioner sought to place on record an affidavit (RPW1/A). An application was filed by the defendant-respondent for striking off the affidavit (RPW1/A) inasmuch as the plaintiff-petitioner had not reserved his right to lead rebuttal evidence. In reply, the stand taken by the plaintiff-petitioner was that the evidence was led by the defendant-respondent on the counterclaim and hence the plaintiff-petitioner had a right to lead the evidence in rebuttal. Vide the impugned order dated 24.12.2015, the application for striking off the affidavit (RPW1/A) was allowed.

6. Learned counsel for the plaintiff-petitioner would contend that since the counter-claim had been filed by the defendant-respondent, hence, the plaintiff-petitioner had a right to lead evidence in rebuttal and even so without reserving his right to lead evidence in rebuttal. In support of his contentions, reliance has been placed upon the judgment of this Court in Naranjan Singh Vs. Ajaib Singh & Anr. [2006 (1) PLR 789].

7. Per contra, learned counsel for the defendant-respondent has contended that without reserving his right to lead evidence in rebuttal, the plaintiff-petitioner could not have been permitted to file the affidavit. It is further the contention of learned counsel for the defendant-respondent that the affidavit now sought to be led in evidence is verbatim the same as the affidavit filed by the petitioner in evidence in affirmative. It is further contended that the contents of the affidavit make it very clear that the evidence now sought to be led is the evidence that he had also led in affirmative and hence the same cannot be allowed in rebuttal. In support of his contentions, learned counsel has relied upon Division Bench judgments 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]. It is further the contention of learned counsel for the defendant-respondent that in the case of Naranjan Singh (supra), separate set of issues had been framed by the Trial Court qua the suit filed by the plaintiff therein and qua the counter-claim filed by the defendant therein whereas in the present case no such separate issues were framed.

8. Heard.

9. In the present case, on the basis of the pleadings of the parties, issues were framed on 31.10.2011. A perusal of the issues, as reproduced above, reveals that no separate issues were framed in the counter-claim. The onus of issue Nos.1 and 2 was on the plaintiff-petitioner and that of issue No.3 was on the defendant-respondent. The plaintiff-petitioner filed his affidavit while leading his evidence in affirmative, which was ta