IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA, CHANDIGARH
C.R.No.5062 of 2007
Date of order : 5.2.2009
Mohinder Singh
......Petitioner(s)
Versus
Sohan Singh and others
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Atul Jain, Advocate for the petitioner.
Mr. R.K. Dadwal, Advocate for respondents No.2,3,4,7 & 8.
None for respondents No.5 & 6.
JASWANT SINGH,J(ORAL)
This revision petition has been filed by the petitioner-plaintiff
under Article 227 of the Constitution of India praying for setting
aside/modifying impugned order dated 10.9.2007 (Annexure P.4) passed by
Additional Civil Judge (Sr.Division), Sultanpur Lodhi, District Kapurthala
whereby an application dated 13.8.2007 (Annexure P.2) for amendment of
issue No.5 filed by the respondents-defendants U/o 14 Rule 5 CPC has been
allowed and issue No.5 has been re-framed.
Petitioner-plaintiff filed a suit for joint possession of 1/4th share
in the land measuring 48 kanal 7 marla fully detailed and described in the
heading of the plaint. The suit was resisted by the respondents-defendants
and on the basis of the pleadings, issue No.5 was framed as “Whether the
suit land is not ancestral and coparcenary property?OPD”. It can be seen
that the onus to prove this issue was placed on the defendants.
Subsequently, respondents-defendants moved an application U/o 14 Rule 5
CPC seeking amendment of issue No.5 and praying the same to be
C.R.No.5062 of 2007 #2#
amended/re-casted as”whether the suit land is ancestral and Joint Hindu
Family Coparcenary property?OPP”. Reply to the application was filed by
the petitioner-plaintiff alleging that the issues were framed in April 2004
and thereafter a period of three years had expired and both the parties have
concluded their evidence and hence at that belated stage, issue No.5 could
not be allowed to be amended.
After hearing the parties, learned Trial Court allowed the
application moved by the respondents-defendants and the issue was
amended/re-casted in the afore-stated terms, by shifting the onus from
defendants to plaintiff.
Learned counsel for the petitioner prays for only one
opportunity to lead his evidence owing to the issue being amended/re-casted
and onus being shifted from “OPD” to “OPP”. He further points out that in
another connected revision petition bearing C.R.No.5204 of 2007 arising
out of a connected suit, where identical issue had been re-casted, this Court
had, vide order dated 11.10.2007, granted the petitioner Mohinder Singh
two opportunities to rebut the evidence led by the defendants on the re-
casted issue No.5. Learned counsel, thus, prays for modification of the
order to the effect that at least one opportunity to lead his entire evidence on
the re-casted issue be granted.
After hearing learned counsel for the parties and going through
the facts of this case, it is clear that the onus was earlier fixed on the
defendants and the defendants have led their evidence on this issue and now
the onus has been shifted to plaintiff, therefore, this Court deems it just and
expedient to grant one opportunity to the petitioner-plaintiff to rebut/lead
evidence led by the respondents-defendants on the amended/re-casted issue
C.R.No.5062 of 2007 #3#
No.5.
Learned Trial Court is directed to grant one opportunity to the
petitioner-plaintiff for this purpose on or before the next date fixed or any
date to be fixed by it subject to payment of Rs.3000/- as costs.
With the above observation, petition stands allowed.
February 5, 2009 ( JASWANT SINGH ) manoj JUDGE