Seema vs Harbir Singh And Others

Amit Rawal, J

The petitioner-defendant is aggrieved of the impugned order whereby the respondent-plaintiff has been granted permission to lead evidence in rebuttal

in suit seeking specific performance of agreement to sell dated 02.12.2011 by challenging the sale deed executed by defendant No.1 in favour of

defendant No.2 and further by defendant No.2 in favour of defendant No.3.

Mr. Ashish Gupta, learned counsel appearing on behalf of the petitioner submitted that the respondent-plaintiff by leading evidence in affirmative

brought on record evidence in terms of pleadings, however, at the stage of defendant's evidence, the petitioner-defendant summoned stamp vendor

from whom the alleged stamp paper for agreement to sell in question were purchased but the same was given up. It is in that background, respondent-

plaintiff moved application for examining of the expert which is not permissible in the absence of any rebuttal issue. Therefore, the impugned order is

not sustainable in the eyes of law.

Per contra, Mr. Rana, learned counsel appearing on behalf of the respondent-plaintiff submitted that since the aforementioned witness was permitted

to be summoned but when the defendant refused to examine, necessity arose to the plaintiff to get the truth ascertained by bringing on record the

register as it would have supported the case of the plaintiff, therefore, the order under challenge cannot be said to be without jurisdiction or illegal,

thus, urges this Court for dismissal of the revision petition.

I have heard learned counsel for the parties, appraised the paper book and of the view that there is force and merit in the submissions of Mr. Gupta,

for, there is no rebuttal issue which would have caused to the respondent-plaintiff to examine the stamp vendor in rebuttal. At the best, the

respondent-plaintiff could have taken the adverse inference at an appropriate stage. It is settled law that a party without reserving right or under the

garb of additional evidence cannot be permitted to lead evidence in rebuttal unless and until special, contingent or subsequent event has arisen.

All these factors have not been taken care by the Court below, therefore, the order under challenge is fallacious and not sustainable in the eyes of

law. The impugned order is set aside and the revision petition stands allowed.