- (1.) The plaintiff is before this court challenging the order dated 4.10.2011, passed by the learned court below whereby the prayer made by him for permission to lead additional evidence/ evidence in rebuttal, was declined. Briefly, the facts are that the petitioner-plaintiff filed a suit for specific performance of agreement to sell dated 15.1.2002 in which issues were framed on 17.8.2006. The petitioner-plaintiff concluded his evidence. The respondents also led their evidence. At that stage, the petitioner filed an application for seeking permission to lead additional evidence/ rebuttal evidence. The prayer was declined by the learned court below. The order has been impugned before this court.
(2.) Learned counsel for the petitioner submitted that from the pleadings of the parties, the learned court below has framed six issues. The onus of the issue "as to whether deceased Moji Ram had entered into an agreement to sell on 15.1.2002 with the plaintiff" was on the petitioner-plaintiff, whereas the onus of issue No. 5 "as to whether the aforesaid agreement to sell is a result of fraud and misrepresentation" was on the defendants. In discharge of the onus on the petitioner, he had led evidence and examined witnesses to the agreement to sell to prove the same. The onus of issue No. 5 was on the defendants. In discharge thereof, they had produced handwriting expert. To the evidence led by the defendants on that issue, the petitioner is entitled to rebut the same. As it is only the party on whom a burden is put, is to lead evidence first on that issue, the petitioner could not pre-suppose the evidence to be led by the respondents in discharge of burden put on them on issue No. 5. It is only after the evidence is led by that party first that the opposite party gets right to lead evidence in rebuttal on that issue. In support of the arguments, reliance was placed upon a judgment of this court in Pawan Kumar v. Surinder Pal and another, 2009 3 CivCC 380.
(3.) On the other hand, learned counsel for the respondents submitted that in fact, issues No. 1 and 5, were together. The primary case of the petitioner-plaintiff is that deceased-Moji Ram had entered into an agreement to sell with him, the specific performance of which was sought by him. In discharge of the burden, whatever evidence was required, should have been led by the petitioner-plaintiff at the first instance. Merely because in defence the respondents have led evidence in the form of a report of handwriting expert, the same will not entitle the petitioner to lead additional or rebuttal evidence.;