Whether appellate court permitting production of additional evidence is bound to give opportunity to other side to lead evidence in rebuttal?

Order LXI Rule 2 provides that the Appellant shall not, except by leave of the court, be allowed to urge any ground in the appeal, which is not set forth in the memorandum of appeal. The proviso to Order LXI Rule 2 engrafts a rule, which obliged the Court to grant a sufficient opportunity to the contesting party, if any new ground is allowed to be urged by another party, which may affect the contesting party. The provision engrafts Rule of natural justice and fair play that contesting party should be given opportunity to meet any new ground sought to be urged. When Appellate Court admits the additional evidence Under Order LXI Rule 27, we fail to see any reason for not following the same course of granting an opportunity to the contesting party, which may be affected by acceptance of additional evidence. In the present case, additional evidence, which were brought on the record were registered sale deeds, which were executed by present Appellant and his other co-sharers and what was relied before the High Court was that the Appellant admitted in the sale deeds that the partition has been taken place in the family. The main issue in the First Appeal before the High Court was as to whether the finding of the trial court that no partition by metes and bounds taken place in the family is correct or not. The additional evidence which was admitted has been relied by the High Court while allowing the appeal. It was in the interest of justice that High Court ought to have allowed opportunity to the Plaintiffs, who were Respondents to the First Appeal to either lead an evidence in rebuttal or to explain the alleged admissions as relied by the Defendants. The mere fact that no counter affidavit was filed to the I.A.s was not decisive. Since I.A.s having not been admitted, occasion for counter affidavit did not arise at any earlier point of time. The High Court on the same day, i.e. 08.03.2017 has allowed the I.A.s as well as the First Appeal. The fact that contesting Respondents to the First Appeal, who are Appellant before us were not represented at the time of hearing of the First Appeal, was not a reason for not giving opportunity to them to lead evidence in rebuttal.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2108 of 2018 (Arising out of SLP (C) No. 19738/2017)

Decided On: 21.02.2018

 Akhilesh Singh Vs. Lal Babu Singh and Ors.

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: (2018) 4 SCC 659

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When plaintiff has no right to adduce evidence in rebuttal?

 In the application, the petitioner has not mentioned at all on what issue the plaintiff-petitioner wants to adduce the evidence in rebuttal. It is settled principle of law that as per Order 18 Rule 3 of the Code of Civil Procedure, 1908 (for short "CPC") the plaintiff can only adduce the evidence in rebuttal on those issues the burden of proof of which is on the defendant. The petitioner-plaintiff has filed the application to summon two official witnesses. It is not mentioned that on which issue he wants to examine these witnesses. This fact is not disputed that plaintiff-petitioner had already led his affirmative evidence to prove his case. Petitioner-plaintiff cannot be allowed to lead the evidence in rebuttal to rebut the evidence adduced by the respondent-defendant on the issues the burden to prove of which was on the plaintiff-petitioner because in order to discharge his onus, the plaintiff was required to lead the evidence in his affirmative evidence as per the provisions of Order 18 Rule 2 CPC. The rebuttal evidence can only be led by the plaintiff on the issues the burden to prove of which was on the defendant. But, the evidence sought to be adduced by the plaintiff-petitioner was not on those issues. So, he has no right to lead the evidence in rebuttal.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revision No. 6223 of 2016 (O&M)

Decided On: 08.11.2016

Harjit Singh Vs. Gurcharan Singh

Hon'ble Judges/Coram:

Darshan Singh, J.

Citation: AIR 2017(NOC) 1129 P& H

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