C.R.No.2854 of 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R.No.2854 of 2005
Date of Decision : 20.10.2009
Ramkuwar ...Petitioner
Versus
Ramkumar Sharma ...Respondent
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
Present: None.
HEMANT GUPTA, J. (ORAL)
Challenge in the present revision petition by the plaintiff is to
the order passed by the learned trial Court on 28.4.2005, whereby the
defendant was permitted to examine expert witness after he closed his
evidence on 22.3.2005.
The plaintiff-petitioner filed a suit for recovery of Rs.43,000/-
out of which Rs.25,000/- is the amount of principal and Rs.18,000/- is the
amount of interest. The defendant in his written statement admitted the
execution of pronote and receipt but pleaded repayment of the pronote
amount. The defendant confronted the plaintiff with the receipt in respect
of repayment, which the plaintiff denied in his cross-examination.
Thereafter, the defendant led his evidence and closed the same on
22.3.2005. Thereafter, an application was filed by the defendant for
examining expert witness to prove the signatures of the plaintiff on the
receipt with which the plaintiff was confronted with during the course of
his cross-examination.
The learned trial Court allowed the application filed by the
defendant holding that onus of proof of repayment was on the defendant.
C.R.No.2854 of 2005 2
Since, the onus of the said issue was on the defendant, therefore, he has a
right to lead evidence on such issue in rebuttal.
The reasoning given by the learned trial Court is not
sustainable in law. The onus of proof of the repayment was on the
defendant. The plaintiff was confronted with the receipt in his cross-
examination. Thereafter, the defendant has led his entire evidence. The
defendant has a right to examine expert witness while leading his
evidence on the said issue. The plaintiff started his evidence. Thereafter,
the defendant led his evidence in affirmative on issue of repayment and in
rebuttal generally. Therefore, the defendant is not entitled to lead
evidence in rebuttal on such issue, as it was for the defendant to lead his
entire evidence, when an opportunity was granted to him to lead
evidence.
The Division Bench of this Court in Surjit Singh and others
Vs. Jagtar Singh and others 2007 (1) RCR (Civil) 537, has examined the
right of leading evidence in rebuttal. It has been held that the right to
lead evidence in rebuttal will arise only to the plaintiff in respect of an
issue, the onus of which was on the defendant. Here, it is the defendant,
who has sought to lead evidence in rebuttal, when he has led his entire
evidence in affirmative in respect of the issue, the onus of which was on
the defendant.
In view of the above, the order passed by the learned trial Court
is proved to be suffering from patent illegality or irregularity. The
present revision petition is allowed and the order passed by the learned
trial Court is set aside.
20.10.2009 (HEMANT GUPTA) Vimal JUDGE