- (1.) THE present petition has been filed by the petitioner-defendant challenging the order dated 14.12.2011, passed by the Civil Judge, (J.D.), Kumher (Bharatpur), and the order dated 4.1.2012 passed by the same Court, in Civil Suit No. 371/2011(Original Suit No. 62/96), whereby the trial court has allowed the respondents-plaintiffs to lead evidence in rebuttal.
(2.) IT has been submitted by learned counsel Mr.Manish Kumar Sharma for the petitioner-defendant that the respondents are trying to fill in the lacuna by producing the documents in rebuttal, which is not permissible. Relying upon the judgments of various High Courts, the learned counsel has submitted that the plaintiff cannot be permitted to lead evidence in rebuttal on an issue on which the burden of proof was on him and had sufficient opportunity to lead evidence at the first instance. He also submitted that the document sought to be exhibited, during the course of cross-examination of the defendant was the document produced by the respondents along with the plaint, however, the same was not got exhibited during their evidence and, therefore, the trial court has committed an error in permitting the respondents-plaintiffs to prove the said document and lead evidence in rebuttal. However, the learned counsel Mr. Bipin Gupta, for the respondents-plaintiffs submitted that the plaintiffs had already reserved their right to lead evidence in rebuttal and the trial court has also permitted them to do so, which order was not challenged by the petitioner-defendant and now when the document which was exhibited during the course of cross-examination of the defendant is being permitted to be proved by the trial court, which order is being challenged by petitioner. He also submitted that the petitioner-defendant had also produced certain documents after his evidence was over and, therefore, the respondents-plaintiffs were required to lead evidence in rebuttal thereafter. Mr. Gupta has relied upon the judgment of this Court in case of Akha Ram Vs. L.Rs. Of Ram Sahai and Anr. AIR 2009 RAJASTHAN 138 , in support of his submissions. In the instant case, the petitioner has challenged the order dated 14.12.2011, whereby the trial court has permitted the respondents-plaintiffs to lead evidence in rebuttal in respect of the document which was ordered to be exhibited as Ex. 59 during the cross-examination of the petitioner-defendant. Thereafter the respondents had filed review application seeking review of the said order, which was also dismissed by the trial court by the impugned order dated 4.1.2012. From the submissions made by learned counsels for the parties and from the documents on record, it appears that both the plaintiffs and the defendant had not produced the requisite documents at the relevant stages and after their respective evidence was over, the defendant had filed certain documents which were permitted to be filed by the trial court and thereafter, the respondents-plaintiffs also relied upon one document which was ordered to be exhibited as Ex.59, during the cross-examination of the petitioner-defendant. The trial court thereafter permitted the respondents-plaintiffs to lead evidence in rebuttal with regard to the said document. It is true that the plaintiffs should not be permitted to lead the evidence in rebuttal as a matter of course or to fill up the lacuna which had occurred in their evidence. However, in the instant case, the document in question has already been exhibited as Ex. 59, during the cross-examination of the petitioner-defendant, and the trial court has only permitted the respondents-plaintiff to lead evidence in rebuttal in respect of the said document. There being no gross illegality in the impugned order, this Court exercising powers under Art. 227 of the Constituting of India, is not inclined to interfere with the same. In that view of the matter, the petition being devoid of merits, deserves to be dismissed and is accordingly dismissed.;