- (1.) The petitioner/plaintiff (for short 'petitioner'), in the instant writ application, has challenged the order dated 18th August, 2012 passed by the learned Trial Court, dismissing the application under Order 8 Rule 6A of the Code of Civil Procedure (for short 'CPC').
(2.) Briefly, the essential facts necessary for adjudication of the controversy raised in the writ application are : that the petitioner filed a civil suit for declaration and permanent injunction with reference to a residential plot measuring 11,360 square feet. The respondents/ defendants (for short 'respondents') filed their written statement. During the course of proceedings, an application was preferred on behalf of the petitioner under Order 18 Rule 17 CPC, which was considered and dismissed by the learned Trial Court by a detailed order on 3rd March, 2012 holding that the provisions of Order 18 Rule 17 CPC, are available to the Court at any stage of suit to recall any witness, who has been examined and may put such questions to him as the Court thinks fit, but those provisions are enabling provisions to do complete justice and not to be exercised in the ordinary course of proceedings.
(3.) The petitioner again filed an application under Order 8 Rule 6A CPC, with the same contents on the basis of pleadings in the counter-claim, which has been again dismissed by the learned Trial Court vide impugned order dated 18th August, 2012, holding that Order 18 Rule 6A CPC, would not furnish a right to the plaintiff to lead evidence in rebuttal on issues in which onus of proof is on the plaintiff. Further, it is settled law that the party on whom the onus lies to prove an issue has to prove the issue by leading the evidence first and the contesting party on the issue, leads evidence to disprove the evidence of the party on whom the onus to prove the issue lies. Thereafter, the party on whom the onus initially lies, cannot be permitted to lead evidence in rebuttal as a matter of right. Evidence in rebuttal by the plaintiff can only be permitted in those cases where the onus to prove some of the issues on facts lies on the defendant.;