IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
CIVIL REVISION PETITION NO.296 OF 2009.
Smt. Kalyani Borkotaky,
Wife of Dr. Hari Narayan Borkotaky,
Resident of Subhasini Road,
Post Office and District – Tinsukia, Assam.
… Petitioner-Plaintiff
-Versus1. Sri Kamakhya Borthakur,
Proprietor of M/S Gargo Motors
having principal place of business
at A.T. Road, Hijuguri, Post Office
and District – Tinsukia, Assam.
2. M/S Gargo Motors,
a proprietorship firm,
represented by its Proprietor
Sri Kamakhya Borthakur,
having principal place of business
at A.T. Road, Hijuguri,
Post Office and District – Tinsukia,
Assam.
…Opposite Parties-defendants
PRESENT
THE HON’BLE MR. JUSTICE A.C. UPADHYAY
For the petitioner
:
Mr. S. Banik,
Mr. B. Sarma, Advocates
For the Opposite Parties
:
Mr. J. Roy, Advocate
Date of hearing
:
15.6.2011.
Date of Judgment
:
22.07.2011
JUDGMENT AND ORDER
This
application
under
Article
227
of
the
Constitution of India is directed against the order dated
10.6.2009 passed by the learned Munsiff No.1, Tinsukia in
Misc.(J)
Case
CRP 296 OF 2009
No.56/09,
arising
out
of
the
Title
Suit
Page 1 of 11
No.30/06, whereby the petition under Section 151 CPC, filed
by the petitioner-plaintiff, praying for allowing to adduce
rebuttal evidence, after closing of the evidence of defendants’
witness, in the counterclaim, was rejected.
2.
Heard Mr. S. Banik, learned counsel appearing
for the petitioner-plaintiff (hereinafter ‘plaintiff’) and Mr. J.
Roy, learned counsel appearing for the opposite partiesdefendants(hereinafter ‘defendants’.
3.
The plaintiff is the owner of registered Tata
Indica DLS Vehicle bearing Registration No.AS-23C-0004. He
purchased the vehicle from defendant No.2, who is the
authorized dealer of Tata Motors. After the purchase, the
vehicle met with an accident on 6.10.2005, in which the
plaintiff and her daughter were seriously injured. The vehicle
in question was brought to the garage of the defendant No.2,
for repairing and it was indicated to the plaintiff by the
defendants
that
the
cost
of
the
repairing
would
be
approximately Rs.40,000/-. The vehicle was finally delivered
to the plaintiff after repairing, in the 2nd week of January,
2006. However, the plaintiff was given a bill amounting to
Rs.1,31,814/-, for repairing of the vehicle. The plaintiff
questioned the bill and then the defendants tried to take over
possession of the said vehicle by unlawful means. Having
been compelled by the circumstances, the plaintiff filed the
CRP 296 OF 2009
Page 2 of 11
Title Suit No.30/06, in the Court of learned Munsiff No.1,
Tinsukia against the defendants, praying for the following
relief(s) –
“i) Grant a judgment and Decree by declaring that the
bill dated 11.1.2006, issued by the defendant’s in
respect of vehicle No.AS-23-C-0004, is exorbitant,
excessive, unreasonable, as such, the bill is not
enforceable in the eye of law.
ii) Grant a Judgment and Decree by declaring that the
defendants or any authority have no valid right to
disturb the lawful and bonafide possession and custody
of the plaintiff in respect of the vehicle No.AS-23 C
0004.
iii) Grant a Judgment and Decree of permanent
injunction against the defendants, restraining the
defendants and/or any other authorities, person(s)
from disturbing the lawful and bonafide possession and
custody of the plaintiff in respect of the vehicle No.AS23 C 0004.
iv) Grant a temporary injunction as above.
v) Grant a leave under Order 6 Rule 17.
vi) Grant cost of the suit.
vii) Grant any other relief(s) to which the plaintiff is
entitled in the eye of law, equity and justice.”
4.
The defendants filed a written statement and also
set up a counter claim for a decree, amongst others for
recovery of Rs.1,16,814.00 along with interest thereon @
12% per annum from the plaintiff. The plaintiff also filed a
written statement against the counter claim raised by the
defendants.
5.
During the course of trial, though the evidence of
the plaintiff’s witness PW-1 was adduced by submitting
CRP 296 OF 2009
Page 3 of 11
evidence on affidavit, but due to failure of the plaintiff
witness PW-1, to appear in the court for cross examination
by the defendants, the evidence of the plaintiff was closed by
the trial court and accordingly, date was fixed for evidence of
the defendants witness.
6.
The plaintiff by filing Misc.(J) Case No.56/09,
prayed for giving an opportunity to the plaintiff to adduce
rebuttal
evidence in support of his pleadings i.e. written
statement
in
the
counter
claim,
filed
by
the
defendants/counter claimant. However, the petition so filed
by the petitioner-plaintiff was rejected by the learned trial
Court by passing the impugned order in the Misc. case
aforesaid, which gave rise to this petition. The operative part
of the impugned order passed by the learned court below in
Misc. Case No.56 of 2009 is depicted herein below –
“This Misc.(J) Case has arisen out of Title Suit
No.30/06 upon the petition filed by the plaintiff
under Section 151 CPC praying therein to allow her
to adduce evidence after the evidence of the
defendant.
Seen the petition. Heard both the sides.
The plaintiff side has submitted that in this case
their evidence was closed without examination of
any witness, as the plaintiff side failed to adduce
evidence on the date fixed for the same. The
plaintiff side has submitted that as there is a
counter claim in the suit, the case got fixed for
evidence of the defendant’s side. The plaintiff would
contend that as she had filed written statement
against the counter claim of the defendants they
should be given another opportunity to lead
evidence against the counter claim after closure of
the evidence of the defendant side.
CRP 296 OF 2009
Page 4 of 11
The learned counsel for the plaintiff, Sri B. Dutta
would contend that as they had filed written
statement against the counter claim and as the
counter claim is regarded as a separate suit, the
plaintiff ought to be given another chance to lead
evidence in support of her written statement
against the counter claim.
The learned counsel for the defendant, Sri Pathik
Deb would contend that the plaintiff was given an
opportunity to lead evidence and she failed to lead
evidence as such the petition ought to be rejected.
Heard. Perused the record. The plaintiff in this case
was given chance to adduce evidence for several
dates and the plaintiff’s witness, Sri Hari Narayan
Borkatoky filed his examination in chief by way of
affidavit but did not produce himself for crossexamination even after several adjournment for the
same, as such the evidence of the plaintiff side was
closed and the examination in chief by way of
affidavit was taken off the records, vide order dated
25.5.09.”
7.
Mr. S. Banik, learned counsel appearing for the
plaintiff strenuously submitted that the counter claim filed by
the defendants is a separate suit, whereby claim has been
made against the plaintiff by the defendants for recovery of
Rs.1,16,814.00, in the counterclaim.
The plaintiff also has
submitted her written statement elaborately explaining her
defence stand. Therefore, it is submitted that the plaintiff as
defendant in the counter claim is required to be afforded
adequate opportunity of being heard by giving opportunity to
adduce rebuttal evidence, before conclusion of the trial, like
the way it is done in a regular suit.
Referring to the
provision of Order 18 Rule 3 CPC, learned counsel pointed
out that the petitioner-plaintiff as a defendant in the counter
claim has every right to produce her witness to rebut the
CRP 296 OF 2009
Page 5 of 11
evidence laid by the counter claimant. Therefore, for the
ends of justice, the learned trial Court ought to have given
the petitioner-plaintiff an opportunity to adduce her rebuttal
evidence. Learned counsel for the plaintiff submitted that in
terms of the provision of Order 18 Rule 3 of the CPC, the
plaintiff cannot be denied to adduce rebuttal evidence on
those issues in the counter claim, where the defendants are
cast with the onus to prove. Learned counsel for the
petitioner pointed out that by refusing to allow the petitioner
to adduce rebuttal evidence, the learned trial court has failed
to
exercise jurisdiction vested in law, which warrants
interference by this court.
8.
Mr. J. Roy, learned counsel for the respondents
submitted that the plaintiff failed to adduce her witness,
when the opportunity was afforded by the court, in the suit
filed by the plaintiff. Therefore, now the petitioner-plaintiff
cannot be given the privilege of adducing further evidence
after closing of the evidence of the plaintiff’s witness.
Learned counsel further pointed out that though a counter
claim has the status of separate suit, but as the counter
claim has arisen from the same subject matter and issues
were framed for both suit and the counter claim together, the
plaintiff cannot be extended the privilege of adducing rebuttal
evidence, since the plaintiff’s evidence has already been
closed by the court.
CRP 296 OF 2009
Page 6 of 11
9.
In support of his contention, learned counsel for
the defendants has relied on the decision of Dinesh Kumar
Vs. State of Haryana and others reported in AIR 2003
Punjab and Haryana 73, wherein, the learned single Judge
of the Punjab and Haryana High Court held that the plaintiff
cannot be given with the opportunity of producing evidence
to rebut the evidence led by the defendants, irrespective of
the issue in question, since the plaintiff has led his evidence
to prove the issues framed by the Court.
10.
However, apparently, there is a subtle difference
between the present case in hand and the case decided in
Dinesh Kumar(Supra). In the present case the petitionerplaintiff is seeking opportunity to adduce rebuttal evidence,
to vindicate his own stand in the written statement filed in
the counter claim. However, in Dinesh Kumar(Supra), the
application was filed by the plaintiff seeking permission to
produce evidence in rebuttal, in order to rebut the evidence
led by the defendants in the suit filed by the plaintiff.
11.
It would be pertinent to extract herein below the
provisions of Order 18 Rule 3 of the CPC, which reads as
follows:-
“3. Evidence where several issues.— Where
there are several issues, the burden of
proving some of which lies on the other
party, the party beginning may, at his
option, either produce his evidence on
those issues or reserve it by way of answer
to the evidence produced by the other
party; and, in the latter case, the party
CRP 296 OF 2009
Page 7 of 11
beginning may produce evidence on those
issues after the other party has produced
all his evidence, and the other party may
then reply specially on the evidence so
produced by the party beginning; but the
party beginning will then be entitled to
reply generally on the whole case.”
12.
If we read Order 18, Rule 3 of the Code of Civil
Procedure as a whole, it transpires that when several issues
are framed in a suit, it would be the Plaintiff, who would lead
evidence, since the onus to prove issues has been placed on
the Plaintiff. Conversely, in a counter claim, obviously there
are several issues and the onus to prove some of which is on
the Plaintiffs and of some on the Defendants. The Plaintiff
leads evidence only on those issues, in which the onus to
prove is on him, and then he can reserve his right to lead
rebuttal evidence on the issues, in which onus to prove is on
the Defendant. If the Defendant is required to lead evidence
on all issues, then the Plaintiff would have the right to lead
evidence in rebuttal, on those issues in which the onus to
prove is on the Defendant. This is obvious from the words
used in this rule that in the latter case the party beginning
may produce evidence on those issues after the other party
has produced its own evidence on those issues. It is only
when the other party is again given a right to lead evidence
either by way of additional evidence or otherwise. More so, in
a counter claim the Plaintiff would get a right to lead rebuttal
evidence on those issues, which are required to be proved by
the defendant as counter claimant. In these circumstances,
CRP 296 OF 2009
Page 8 of 11
the Plaintiff, apparently, cannot be denied the right to adduce
rebuttal evidence.
13.
It is well settled law that the party, on whom the
burden to prove an issue is given, has to prove the issue. It
has to first lead evidence to prove the issue and the other
party contesting the said issue leads evidence to discredit or
disprove the evidence of the party on whom the onus to
prove the issue lay. The party on whom the onus was initially
laid to prove the issue cannot be permitted to lead rebuttal
evidence as a matter of right. However, rebuttal evidence by
the Plaintiff cannot be denied on those issues, which are
required to be proved by the Defendant. Accordingly, in a
counter claim, where the onus to prove the issues are on the
defendant by adducing evidence, the plaintiff would have a
right to adduce rebuttal evidence.
14.
The right of rebuttal is provided under Order 8 Rule
3 CPC and the Order does not specify that a choice or option
is to be exercised by the plaintiff after its evidence is over.
This right has been given irrespective of exercise of the
option at that stage. It is only after defendant’s evidence in
the counter claim the plaintiff can decide whether there is
necessity of leading evidence in rebuttal or not. Therefore, at
that stage also, plaintiff can exercise his right of leading
evidence in rebuttal.
CRP 296 OF 2009
Page 9 of 11
15.
On
careful
consideration
of
the
facts
and
circumstances, leading to filing of this application, it appears
that the plaintiff in the counter claim took a definite defence
stand in his written statement. Therefore, on conclusion of
the recording of the evidence of the defendants in the
counter claim, the court has every power to allow the plaintiff
to adduce his rebuttal evidence in the counter claim on those
issues in which onus to prove is cast on the defendants. If
such opportunity is not afforded to the plaintiff, it would
amount to denial of natural justice.
16.
In view of the above discussion, the order of
learned trial Court is patently erroneous. The Plaintiffs, in any
circumstances, is required to be permitted to lead rebuttal
evidence on those issues where the onus of proof in on the
defendant as counter claimant.
17.
Consequently, I find that the impugned order
passed by the learned trial court warrants interference.
Accordingly, the impugned order dated 10.6.2009 passed by
the learned Munsiff No.1, Tinsukia dismissing Misc.(J) Case
No.56/09 is hereby set aside and the matter is remitted to
the trial Court
with a direction to allow
the petitioner-
Plaintiffs to lead rebuttal evidence on those issues, where the
onus of proof is cast on the defendants counter claimant.
CRP 296 OF 2009
Page 10 of 11
18.
With the above observation and direction the
application filed by the plaintiff petitioner is allowed.
No
costs.
JUDGE
TDR
CRP 296 OF 2009
Page 11 of 11