SB CWP NO.1388/2009 - MOHD. HANIF AND ANR. V/S L.Rs. OF USMAN GANI AND
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IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
S.B. CIVIL WRIT PETITION NO.1388/2009
Mohd. Hanif and anr.
Versus
L.Rs. of Usman Gani and ors.
PRESENT
HON'BLE Dr.JUSTICE VINEET KOTHARI
Mr. G.R. Singhvi, for the petitioners.
Mr.Deepak Parihar, for
Mr. Jitendra Chopra, for the respondents.
DATE OF JUDGMENT : 2nd February, 2010.
JUDGMENT
1. This writ petition is directed against the order dtd.9.2.2009
(Annex.9) passed by the learned trial Court rejecting the defendant –
petitioner’s application under Section 151 C.P.C. by which the
defendant petitioner had objected to the affidavit filed by the plaintiff
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ORS.: JUDGMENT DTD.2.2.2010
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in rebuttal evidence along with the fresh documents in the suit for
possession filed by him.
2. Mr. G.R. Singhvi, learned counsel for the petitioners –
defendants urged that during the course of rebuttal evidence, the
plaintiffs – respondents cannot be permitted to introduce new
documents and also cannot be allowed to prove the documents filed
in the course of defendants’ evidence for confronting him for limited
purpose.
3. On the other hand Mr. Deepak Parihar, learned counsel
for the respondents submitted that the impugned order does not
deserve to be interfered with under Article 227 of the Constitution of
India because the defendants – petitioners have been allowed the
opportunity of cross-examination by the learned trial Court.
Therefore, the plaintiffs – respondents had been allowed to file said
affidavit in rebuttal evidence.
4. Having heard the learned counsels, this Court is of the
view that the plaintiffs – respondents cannot be permitted to introduce
SB CWP NO.1388/2009 – MOHD. HANIF AND ANR. V/S L.Rs. OF USMAN GANI AND
ORS.: JUDGMENT DTD.2.2.2010
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any fresh and new document at the stage of rebuttal evidence and
therefore, the documents filed with the affidavit in the course of
rebuttal evidence will not be taken on record and will be struck off
from the record. However, for the affidavit filed by the plaintiff –
respondent in the course of rebuttal evidence, since the petitioners –
defendants has right to cross-examination during the course of
rebuttal evidence, it cannot be said that the plaintiffs – respondents
cannot file said affidavit in the course of rebuttal evidence. The
objections if any, regarding the documents filed during the course of
rebuttal evidence for confrontation will be open to be raised during
the course of final hearing of the suit itself and subject to further
appeal if any.
5. With these observations, this writ petition is disposed of.
No order as to costs.
[ DR. VINEET KOTHARI ], J.
item No.11
SS/-