No Provision In CPC Permits A Party To Lead Evidence In Rebuttal On An Issue, The Onus Of Proof Of Which Lies On It: JKL High Court

The Jammu and Kashmir and Ladakh High Court on Friday ruled that there is no provision in the Code of Civil Procedure which permits a party beginning to lead evidence in rebuttal on an issue, the onus of proof of which lies on it.

A bench comprising Justice Sanjay Dhar observed,

"If out of several issues, burden to prove some of the issues lies on the other party, then the party can begin, at his option and either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party. In the latter case, the party beginning may produce the evidence in rebuttal to the evidence led by the other party only on those issues the burden of proof whereof lies on it"

The observations were made while hearing a plea in terms of which the petitioner had challenged an order dated passed by Sub Judge (City Judge), Srinagar, in terms of which the application of the petitioner/ plaintiff for producing evidence in rebuttal had been dismissed.

The petitioner challenged the impugned order on the ground that the trial court had not interpreted the provisions contained in Order 18 Rule 3 of CPC in its right perspective. Petitioner contended that while closing her evidence, she had reserved her right to lead evidence in rebuttal and in spite of this, she has not been allowed to lead evidence in rebuttal, which is against the law.

Petitioner/Plaintiff further contended that if the impugned order is allowed to stand, it will cause grave prejudice to the interests of the plaintiff.

Perusal of the trial court record revealed that when plaintiff closed her evidence, she did the same subject to her right to produce evidence in rebuttal under Order 18 Rule 3 of CPC and this had been specifically recorded in order dated 21.08.2021 passed by the trial court.

The issues framed in the suit, revealed that regarding some of the issues the onus of proof had been placed on the plaintiff whereas regarding certain other issues, the onus of proof had been placed on the defendant.

The question that fell for determination before the bench was as to which were the issues that the plaintiff was entitled to lead evidence in rebuttal once it was shown that she had reserved her right to do so.

Adjudicating upon the matter Justice Dhar observed that perusal of Order 18 Rule 3 CPC clearly prescribes that when there are several issues, the burden of proving some of which lies on other party, the party beginning may reserve its right to produce evidence by way of answer to the evidence produced by the other party and in case that is done, the party beginning may produce evidence on those issues, after the other party has produced the evidence.

"Thus, it is clear that if the plaintiff reserves his/her right to lead evidence on those issues regarding which burden of proof has been placed upon the defendant, then he/she has a right to produce evidence only on those issues regarding which burden of proof has been placed on the defendant", the bench underscored.

In view of the scope and ambit of the said provision the bench stated that the trial court has rightly observed in the impugned order that the plaintiff cannot be allowed to lead evidence in rebuttal on those issues, the onus of proof of which lies on her. However, the plaintiff can certainly lead evidence in rebuttal in respect of the issue the burden of proof of which is on the defendant, the court explained.

Applying the said position to the case at hand the bench observed that there are certain issues the burden of proof of which is upon the defendant and the plaintiff had reserved her right to lead evidence in rebuttal and thus plaintiff is entitled to lead evidence in rebuttal in respect of those issues.

"Merely because the plaintiff has not spelled out as to on which issue, she intends to lead evidence in rebuttal, her right to lead evidence in rebuttal should not have been shutout altogether",the bench maintained.

Accordingly, the petition was allowed and the impugned order passed by the trial court was set aside. The trial court was further directed to permit the plaintiff to produce her evidence whereafter the trial court shall take a decision as to whether the evidence brought by the plaintiff is in rebuttal to the material brought by the defendant.

Case Title: Khalida Salman Vs Sahil Ahmad Dar.

Citation: 2022 LiveLaw (JKL) 263

Coram : Justice Sanjay Dhar

Counsel For Petitioner : Mr Wali Mohammad.

Counsel For Respondent : Mr Tasaduq Hussain.

Click Here To Read/Download Order