A party upon whom onus lies to prove an issue cannot be permitted to fill lacunae in his own evidence by leading rebuttal evidence under Order XVIII Rule 3 CPC

The Delhi High Court held that if a party fails in leading evidence in the first place and is only trying to fill up lacunae by seeking rebuttal evidence, the same is not permitted..

The above ratio was passed by the Delhi High Court in the matter of Hemant Kumar Singhal vs. Indian Overseas Bank in CM(M) 1457/2019 decided on 10.12.2019.

Challenge

The Plaintiff filed a suit for recovery of loan against Defendant No. 1- the principal borrower and Defendant No. 2- the guarantor. The stand of Defendant No.2 was that Defendant No.1 produced forged signatures of Defendant No.2 and that he had never stood guarantor for any loan of Defendant No.1. In order to prove this assertion Defendant No.2 himself appeared as witness and also led evidence of a handwriting expert. The handwriting expert was also cross examined by the Plaintiff. The Plaintiff further moved an application under Order XVIII Rule 3 CPC for leading evidence in rebuttal and evidence of an expert witness.

The said application was dismissed by the Ld. ADJ and therefore, the present revision petition came to be filed.

Held

The Delhi High Court held that the Defendant No.2’s case had always been that he has never stood guarantor to Defendant No.1 and that there has been a forgery. A perusal of the issues shows that the Plaintiff had a positive obligation to prove that it is entitled to seek recovery from Defendant No.2. The Plaintiff, on the basis of the pleadings had an obligation to establish that the documents relied upon by it were genuine, were not fraudulent and were not forged. The Plaintiff had also perused the handwriting expert report. Thus, the Plaintiff had adequate opportunity to deal with the question of forgery and fraudulent nature of documents as alleged by Defendant No.2 during its own evidence.

The Court further held that under Order XVIII Rule 3 CPC, the Plaintiff would only be entitled to rebuttal evidence if the onus is on the opposite side. The Bank had adequate opportunity to disprove the defendant’s case in its own evidence. The Court further held that had the basic onus was on Defendant No.2, the Plaintiff could have been permitted to lead rebuttal evidence.

The Court therefore, held that the Plaintiff had utterly failed in leading evidence in the first place and is only trying to fill up lacunae by seeking rebuttal evidence