1. By filing this civil revision petition, the petitioners have called in question the order dated 30.10.2013 passed by the learned Additional District Judge, Layyah refusing to provide an opportunity to the present petitioners/respondents in appeal to produce any evidence in rebuttal.
2. Precise relevant facts to the present controversy are that this Court in Civil Revision No.1267 of 2011 on 06.06.2012 permitted the present respondents to produce additional evidence during pendency of appeal in terms of Order XLI Rule 27 C.P.C. As a consequence of such permission, the learned counsel for the appellants before the learned first appellate court on 30.10.2013 produced the documents in additional evidence. After such production, a request was made before the learned Additional District Judge on behalf of the present petitioners/respondents in first appeal to provide an opportunity to produce evidence in rebuttal, which was refused on the pretext that only the appellants before the learned Additional District Judge were allowed by this Court to produce additional evidence, thus, rebuttal was not possible. Hence, this civil revision petition.
3. The procedure prescribed for recording of evidence is mainly based upon common sense. Insofar as a plaintiff is concerned, while examining his evidence in affirmative, he has no idea as to by which evidence, the defendant is to rebut his evidence, whereas the defendant, while leading his evidence, knows exactly what evidence has been led by the plaintiff and by which evidence he has to rebut the same. The defendant is, thus, to be permitted to lead evidence with regard to whole case, which right has also been given to the plaintiff by way of rebuttal.
In case of Harichand and others versus Mst. Bachan Kaur and others (AIR 1971 Punjab & Haryana 355), it was held that it is a fundamental rule of justice that whenever additional evidence is led in, the opposite party has to be permitted to rebut it; otherwise it will lead to grave injustice, particularly when the evidence is of such a nature that it raises a rebuttal presumption, and that rebuttal presumption can only be displaced if an opportunity is given in that behalf. As no opportunity has been allowed merely on the ground that the additional evidence is in the shape of revenue record, it is fair that such an opportunity should be allowed and the High Court allowed such opportunity.
In case of The Land Acquisition Officer, City Improvement Trust Board, Bangalore versus H. Narayanaiah etc. (AIR 1976 Supreme Court 2403), the rule laid down was that subsequent to taking additional evidence on record under Order XLI Rule 27 C.P.C. for good reasons, it is incumbent upon the said competent authority/Court to allow the opposite party an opportunity of rebuttal.
A Division Bench of Punjab and Haryana at Chandigarh in case titled Avtar Singh and another versus Baldev Singh and others (Punjab And Haryana) (D.B.) 2015(1) CivCC 728 on the issue of evidence in rebuttal has held that it is imperative right of the plaintiff to lead evidence in rebuttal to such issues onus of which is put on the defendant and that the procedural law is not mandatory, but directory in nature and in such circumstances, it would not be necessary for the plaintiff to reserve a right to lead evidence in affirmative, when such plaintiff has otherwise such right and law permits him to lead evidence in rebuttal to such issues.
In case titled (1)The Secretary to the Government of West Pakistan, Communication and Works Department and (2) The Advisor, Town Planning versus Gulzar Muhammad (PLD 1969 Supreme Court 60), our Apex Court has laid down a principle that whenever additional evidence is allowed in appeal, an opportunity of adducing rebutting evidence would also be provided to the respondent in appeal.
4. It is, thus, held that it is a fundamental rule of justice that whenever additional evidence is led in, the opposite party has to be permitted to rebut it; otherwise it will lead to grave injustice. It is further needful to assert that leading evidence in rebuttal is also a part of the plaintiff’s evidence, whether he leads it in one go qua all the issues and close his evidence or reserve his right to lead rebuttal evidence. Since no opportunity has been allowed to the present petitioners to produce evidence in rebuttal merely on the ground that the additional evidence is in the shape of revenue record, it is fair that such an opportunity must be allowed and I hold accordingly.
5. Resultantly, this civil revision petition is allowed and the impugned order dated 30.10.2013 passed by the learned Additional District Judge is set aside and the present petitioners/respondents in appeal/plaintiffs in the suit are allowed to produce their evidence in rebuttal to whatever has been brought on record by the present respondents/defendants in the suit by means of additional evidence.
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