Punjab-Haryana High Court
Vijay Goenka vs M/S Allwyn Enterprises (India) & Others on 16 December, 2013
Author: Rajan Gupta
Bench: Rajan Gupta
CR-80 & 87 of 2013 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
1- Civil Revision No.80 of 2012 (O&M)
Date of decision: December 16, 2013
Vijay Goenka ...Petitioner
Versus
M/s Allwyn Enterprises (India) & others ...Respondents
2- Civil Revision No.87 of 2012 (O&M)
Vijay Goenka ...Petitioner
Versus
M/s Allwyn Enterprises (India) & others ...Respondents
CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA
Present: Mr. Amit Rawal, Senior Advocate with
Mr. Nimanyu Gautam, Advocate for the petitioner. Mr. Piyuskant Jain, Advocate for respondent No.1. Rajan Gupta, J. (oral) This order will dispose of the above mentioned two revision petitions preferred against order dated 22.11.2011 passed by the trial court, whereby two applications, one preferred by defendant/petitioner for de-exhibiting certain documents and another filed by plaintiff for framing of additional issue, have been disposed of.
Mr. Rawal, learned senior counsel for petitioner has assailed the order. According to him, trial court ought to have allowed the application for expunging examination-in-chief of an official of PSIEC Singh Rajpal 2013.12.16 14:13 I attest to the accuracy and integrity of this document Chandigarh CR-80 & 87 of 2013 2 and de-exhibiting the documents tendered by him. He further contends that this evidence could have only be led in affirmative by the plaintiff. At the stage of rebuttal he could not be allowed to exhibit the document in question. He has relied upon judgment reported as Surjit Singh and others vs. JagtarSingh and other, 2007 (1) R.C.R. (Civil) 537. He has also urged that trial court has erred in allowing the application for framing of additional issue at the fag end of the trial.
Learned counsel for the respondent No.1 has opposed the plea. According to him, defendant No.2 had already taken a stand in the written statement that he was a bonafide purchaser for consideration. This witness was subjected to cross-examination by plaintiff. Parties were always aware of the fact that this issue was involved in the controversy. However, inadvertently no issue could be framed regarding this. Thus, trial court had rightly framed the additional issue. As onus to prove this issue would be on the defendants, plaintiff had been granted an opportunity to produce evidence in rebuttal. He has relied upon judgment reported as Pawan Kumar vs. Surinder Pal & Anr., 2009 (3) Civil Court Cases 380 (P&H).
I have heard learned counsel for the parties and given careful thought to the facts of the case.
Plaintiff (respondent No.1 herein) filed a suit seeking a declaration that transfer of an industrial plot at Focal Point, Phase V-Dhandari Kalan, Ludhiana by defendant No.4 in favour of defendant No.1 and further transfer by defendant No.1 in favour of defendant No.2, was illegal and invalid. He also sought consequential relief of Singh Rajpal 2013.12.16 14:13 I attest to the accuracy and integrity of this document Chandigarh CR-80 & 87 of 2013 3 mandatory/permanent injunction and also sought possession of the plot in question. Plaintiff led evidence in affirmative. It thereafter, reserved its right to rebut the evidence. During the trial defendant No.2 deposed as DW7. He was cross-examined by the plaintiff. As the trial reached the stage of rebuttal evidence, one witness namely, Devinder Kumar, a Senior Assistant in PSIEC was summoned to prove certain documents. Aggrieved, defendant/petitioner moved application for expunging the examination-in-chief of said witness and to de-exhibit the documents. Plaintiff on the other hand, sought framing of an additional issue. Trial court found that issue 'whether defendant was a bonafide purchaser for consideration', was an integral part of the controversy and defendant No.2 had already led evidence in support thereof. At the time of framing of issues, inadvertently no issue about the defendant being bonafide purchaser, could be framed. It, thus, allowed framing of additional issue in this regard and declined the prayer for de-exhibiting documents tendered by defendant No.2. As onus of proving additional issue was on the defendant and defendant had already led evidence in support thereof, plaintiff was given an opportunity to rebut the same. I find no infirmity with the order. The judgment in Surjit Singh's case (supra) relied upon by counsel for the petitioner is not applicable to the facts of the case. In said case, the issue for consideration before the court was whether plaintiff could be allowed to lead evidence in rebuttal on an issue, onus of proof of which was on plaintiff himself. The question was answered in negative. In the instant case, onus of proof of additional issue was on defendant and his evidence regarding same is already on record. Singh Rajpal 2013.12.16 14:13 I attest to the accuracy and integrity of this document Chandigarh CR-80 & 87 of 2013 4 Plaintiff was, thus, given an opportunity to lead evidence in rebuttal. Admittedly, after completing his affirmative evidence, plaintiff had reserved his right to rebut defendant's evidence. In Pawan Kumar's case (supra), it has been held as under:-
"8........... After hearing the learned counsel for the parties and considering the legal position as discussed above, I find merit in the contention raised by learned counsel for the petitioner. In the instant case, it is not in dispute that the onus of the issues No.5 and 12 is on the defendants-respondents. If during the course of leading evidence on the issues, the onus whereof was on the plaintiff, any statement was made with regard to issues the onus of which is on the defendants, the same shall not mean that plaintiff had in fact led or concluded his evidence on those issues as it is only after the defendant has led his evidence that plaintiff will come to know the same and get an opportunity to rebut the same. Plaintiff cannot presuppose the evidence which is to be led by the defendant on the issues, the onus whereof is on him. Even otherwise procedural law is subservient to the cause of justice."
In my considered view, ratio of aforesaid judgment is applicable to the instant case. I, thus, find no ground to interfere in revisional jurisdiction.
Both the revision petitions are hereby dismissed.
(RAJAN GUPTA) JUDGE December 16, 2013 'rajpal' Whether to be referred to reporter? Yes / No Singh Rajpal 2013.12.16 14:13 I attest to the accuracy and integrity of this document Chandigarh