Under Order 18 Rule 3 CPC, a plaintiff cannot lead evidence in rebuttal on issues where the onus of proof lies upon them unless they specifically reserve the right to do so at the time of closing evidence in affirmative.

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SUVIR SEHGAL, J.

1. This revision petition has been filed assailing order dated 06.02.2020, passed by the Family Court, Ludhiana, whereby an application, Annexure P-4, filed by the petitioner/defendant No.4 for striking out the affidavit filed by way of rebuttal evidence, has been dismissed.

2. Counsel for the petitioner has contended that after closing her evidence in affirmative, respondent No.1/plaintiff cannot be permitted to produce evidence in rebuttal. He asserts that plaintiff can be permitted to lead evidence in rebuttal only on the issues, in which, the burden of proof is on the defendants unless the plaintiff specifically reserves her right to do so. He has placed reliance upon a judgment of Division Bench of this Court in Avtar Singh and another Vs. Baldev Singh and others 2015 (1) PLR 230.

3. Opposing the petition, counsel for respondent No.1 has argued that the evidence being produced by respondent No.1/plaintiff is vital to establish that the plaintiff was married to defendant No.1 as this relationship has been denied by the defendants. He has placed reliance upon Smt. Jaswant Kaur and another Versus Devinder Singh and others 1983 (2) RCR (Rent) 57.

4. I have heard counsel for the parties and considered their arguments besides examining the paper-book with their able assistance.

5. Respondent No.1/plaintiff filed a suit, Annexure P-1, under Order 33 Rule 1 CPC for permission to sue as an indigent person and for recovery of Rs.7,20,000/- as arrears of maintenance payable to her @ Rs.20,000/- per month by defendant No.1 for the past three years claiming to be his legally wedded wife. Plaintiff also sought a decree of permanent injunction restraining the defendants from alienating the suit property. Suit is being contested by the defendants by filing a written statement and on the basis of pleadings of the parties, Trial Court framed the following issues:-

“1. Whether plaintiff is entitled to the relief of recovery as prayed for? OPP

2. Whether plaintiff is wife of Darshan Singh? OPP

3. Whether suit is not maintainable? OPD

4. Whether plaintiff has not come to the court with clean hands and suppressed material facts? OPD

5. Relief.”

6. Plaintiff led evidence in support of her claim and closed her evidence on the statement of her counsel on 27.07.2018. The order passed by the Trial Court is reproduced hereunder:-

“Pritam Kaur Vs. Darshan Singh

Statement of Swatantar Sood, Advocate,

Counsel for the plaintiff.

I close plaintiff evidence in affirmative.

Sd/-

Civil Judge (Jr. Divn.)

Ludhiana

27.07.2018”

7. After the defendants concluded their evidence, proceedings were fixed for rebuttal, if any, when the plaintiff tendered an affidavit of Harjinder Kaur, Annexure P-3, wherein it was deposed that the testator was a witness to the wedding ceremony of plaintiff with defendant No.1. At this stage, an application, Annexure P-4, was filed by some of the defendants for striking out of the affidavit, which after contest has been rejected vide order impugned herein.

8. A perusal of the issues framed by the Trial Court shows that the onus of the first two issues were on the plaintiff. The burden was on the plaintiff to establish that she was legally wedded wife of defendant No.1 and was entitled to the recovery of maintenance. The onus of the remaining two issues, which pertain to the maintainability of the suit and the alleged suppr