N.K.KAPOOR, J. - (1.) THIS is defendants' regular second appeal against the judgment and decree of the Additional District Judge dated 16. 1. 1989 whereby the appeal filed by the plaintiffs was accepted, thus decreeing their suit.
(2.) AT the motion hearing, it was argued by the counsel for the appellants that application for additional evidence was allowed without granting an opportunity to the appellants to produce evidence in rebuttal. Noticing this contention, notice of motion was issued and ultimately the appeal was admitted. Today counsel for the appellant without going any further on the merit of the controversy raised in the appeal, primarily addressed arguments with regard to non grant of opportunity to the appellants to adduce evidence in rebuttal. According to the counsel, such a course has been deprecated by this Court as well as by the apex Court. Even otherwise, the appellants are entitled to lead evidence to rebut such evidence which has been ordered by the Court by way of additional evidence as per law. According to the counsel, two applications were filed by the plaintiffs for seeking permission to adduce additional evidence before the lower appellate Court dated 4. 1. 1988 and 30. 11. 1988. Pursuance to the notice issued by the Court, reply was filed by the defendants-present appellants. The applications were taken up for consideration and allowed on the day when the appeal was heard and decided i. e. on 16. 1. 1989. It was thus argued that the impugned judgment and decree of the lower appellate Court is liable to be reversed on this short ground.
(3.) I have heard learned counsel for the parties and perused the documents referred to by the learned counsel for the appellants i. e. applications for additional evidence and the order passed by the Court on 16. 1. 1989. Admittedly, no opportunity has been afforded to the defendant-appellants to adduce evidence in rebuttal. In case reported as Harichand and Ors. v. Mst. Bachan Kaur and Ors. , A. I. R. 1971 Punjab and Haryana, 355, a plea was raised that since additional evidence is in the nature of revenue record, no opportunity need be granted to the contesting side. This argument was repelled and it was held as under :". . . It is a fundamental rule of justice that whenever additional evidence is led in, the opposite party has to be permitted to rebut it; otherwise it will lead to grave injustice, particularly when the evidence is of such a nature that it raises a rebuttal presumption, and that rebuttal presumption can only be displaced if an opportunity is allowed in that behalf. As no opportunity has been allowed merely on the ground that the additional evidence is in the shape of revenue record, it is fair that such an opportunity should be allowed and I hold accordingly. " ;