Harcharan Singh and others vs Balvir Kaur and others

L.N. Mittal, J.—CM No. 1923 of 2012

Allowed as prayed for. Main Case

Aggrieved by order dated 21.02.2012 Annexure P-1 passed by learned Civil Judge (Junior Division), Barnala thereby disallowing plaintiff No. 2 Harbhajan Singh to tender affidavit Annexure P-3 as examination-in-chief in rebuttal evidence, plaintiffs have filed this revision petition under Article 227 of the Constitution of India to assail the said order.

I have heard learned counsel for the petitioners and perused the case file.

Counsel for the petitioners vehemently contended that issue regarding suit being barred by limitation with onus on defendants has been framed and, therefore, in view of Order 18 Rule 3 of CPC (in short, CPC), the plaintiffs are entitled to lead evidence in rebuttal on the said issue. It was pointed out that affidavit Annexure P-3 is sought to be tendered in rebuttal evidence as examination-in-chief to prove that the defendants attempted to take forcible possession of the suit land and to interfere in possession of the plaintiffs thereon on 20.02.2006 giving rise to cause of action to the plaintiffs for filing of the suit and, therefore, the suit is within limitation and consequently this evidence relates to issue relating to limitation, onus whereof is on the defendants and consequently this evidence can be led in rebuttal. Reliance has been placed on three judgments of this Court namely M/s. Punjab Steel Corporation, Batala Versus M.S.T.C. Limited, Calcutta reported as 2002(1) CCC 503 (P&H); Jai Narain versus Satya Narain & others reported as 2008 (2) CCC 274 (P&H) and Ranjit Singh versus Mehfil Restaurant reported as 2008 (2) CCC 225 (P&H).

I have carefully considered the aforesaid contention but find myself unable to accept the same. At the outset, it has to be noticed that there is no quarrel with the legal preposition laid down in the aforesaid judgments cited by counsel for petitioners and also emanating from Order 18 Rule 3 CPC that plaintiff has right to lead evidence in rebuttal on issue onus whereof is on the defendant. However, in the instant case, plaintiffs by way of rebuttal evidence want to depict that the defendants attempted to interfere in possession of the plaintiffs on 20.02.2006, giving rise to cause of action to the plaintiffs for filing of the suit. However, this part of the evidence lies within the domain of affirmative evidence of the plaintiffs because it was so pleaded in the plaint itself. Consequently, plaintiffs cannot be permitted to lead rebuttal evidence on this plea, being plea of affirmative pleaded by the plaintiffs in the plaint itself. For the reasons aforesaid, I find no perversity, illegality or jurisdictional error in impugned order of the trial Court warranting interference at the hands of this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is devoid of merit and is, therefore, dismissed in limine.