Naveen Gupta v. Deepak Aggarwal

1. Exemption allowed subject to just exceptions. C.M. stands disposed of. +C.M. (M) No.650/2014 and C.M. No.10912/2014 (stay)

2. This petition under Article 227 of the Constitution of India impugns the order of the court below dated 17.5.2014 by which the application filed by the petitioner/defendant/tenant in a suit for possession and mesne profits at the stage of final arguments for leading additional 2014:DHC:3219 evidence has been dismissed.

3. In the suit, the onus to prove the main issues was on the defendant/petitioner, and after plaintiff led limited evidence in his affirmative evidence, the case was fixed for evidence of defendant and defendant examined seven witnesses. The plaintiff/respondent thereafter examined three witnesses in rebuttal, and the case was thereafter listed for final arguments.

4. At this stage of final arguments, the subject application was filed by the petitioner/defendant seeking to lead further evidence.

5. I disagree with the argument urged by the counsel for the petitioner/defendant that whatever evidence the petitioner wants to lead is rebuttal evidence, inasmuch as, Order 18 Rule 3 of Code of Civil Procedure, 1908 (CPC) states that where there are various issues, onus to prove some of which is on the plaintiff and onus of others is on the defendant, then when the defendant leads evidence after the evidence of the plaintiff is completed in affirmative, the defendant has to lead entire evidence not only with respect to issues of which onus is upon him but also rebuttal evidence on those issues onus of which is on the plaintiff. Once the plaintiff, after evidence of the defendant, leads evidence in rebuttal, there is no provision in law for the further so called rebuttal evidence by the defendant.

6. The court below has noticed that sufficient opportunities were available to the petitioner/defendant for leading evidence, who led evidence of as many as seven witnesses, and that at the stage of final arguments the application seeking to lead evidence cannot be allowed once the evidence which was sought to be led now was very much in the control, power and possession of the petitioner/defendant at the time when the evidence of the petitioner/defendant was led.

7. In view of the above, I do not find any illegality in the order of the court below, and therefore this petition is dismissed, leaving the parties to bear their own costs. JULY 11, 2014 VALMIKI J. MEHTA, J. Ne