Rebuttal evidence is permissible when defendants’ denial necessitates proving previously withheld material evidence.

The respondent-plaintiff instituted a suit seeking permanent injunction, rendition of accounts and damages against the petitioners-defendants for allegedly infringing and using the trademark “DRIPSEAL”.

Issues were framed on 06.01.2015. The plaintiff closed his affirmative evidence on 03.04.2017 by stating, “I close my evidence in affirmative”; the defendants thereafter closed their evidence on 29.09.2017.

Before the matter was taken up for rebuttal evidence, the plaintiff applied on 09.10.2017 to summon an official from the Excise and Taxation Department with VAT records of the defendants’ firm and Shri Girwar Singh Chouhan, proprietor of M/s G.S. Metal Tube.

The Trial Court dismissed the defendants’ application on 05.04.2018, leading to the present revision petition.

1. Whether the plaintiff’s statement that he was closing his evidence “in affirmative” amounted to a reservation of his right to lead evidence in rebuttal under Order 18 Rule 3 CPC?

2. Whether the plaintiff could, at the rebuttal stage, summon the official from the Excise and Taxation Department to produce VAT returns allegedly withheld or denied by the defendants?

3. Whether the plaintiff could summon Shri Girwar Singh Chouhan to prove matters relating to issues on which the burden of proof lay upon the plaintiff, when no specific circumstance justified production of that evidence in rebuttal?

The Court applied Order 18 Rule 3 CPC, under which the party beginning may either produce evidence on issues on which it bears the burden or reserve such evidence by way of answer to the evidence produced by the opposite party; the reservation must ordinarily be made by the time the party closes its evidence.

Relying on *Surjit Singh v. Jagtar Singh*, 2007(1) RCR (Civil) 537, and the principles discussed therein from *Smt. Jaswant Kaur* and *National Fertilizers Ltd.*, the Court held that evidence relating to issues on which the plaintiff bears the onus cannot ordinarily be introduced in rebuttal, though the reservation of rebuttal rights should not be construed with undue technicality.

The Court further applied the procedural principle stated in *Sangram Singh v. Election Tribunal, Kotah*, AIR 1955 SC 425, and reaffirmed in *Nafees Ahmad v. Soinuddin*, 2025 SCC OnLine SC 826, that procedural rules are intended to facilitate justice, not defeat substantive rights through technicalities, provided fairness is maintained to both sides.

The Court held that the plaintiff’s statement that he closed his evidence “in affirmative” did not amount to abandonment of his right to lead rebuttal evidence.

Ordinarily, the VAT records and the testimony of Shri Girwar Singh Chouhan, being relevant to issues on which the plaintiff bore the burden of proof, ought to have been produced in affirmative evidence in accordance with *Surjit Singh*.

However, the VAT records stood on a different footing because defendant No. 1, while appearing as DW-1, denied possession of the relevant VAT returns for 2012–13 and 2013–14.

The plaintiff’s need to summon the records arose only after that denial, and he could not reasonably have anticipated the defendants’ position during his affirmative evidence.

Permitting the official records therefore served the purpose of bringing material evidence before the Court and addressing the alleged withholding of relevant documents.

In contrast, no comparable subsequent event or exceptional circumstance existed regarding Shri Girwar Singh Chouhan. His evidence was intended to establish the plaintiff’s case on issues for which the plaintiff bore the onus and, consequently, could not properly be introduced at the rebuttal stage.

The Court upheld permission to summon the official from the Excise and Taxation Department and produce the relevant VAT records, treating the circumstances of the defendants’ denial and alleged withholding of the records as sufficient justification for permitting that evidence at the rebuttal stage.

However, the permission to summon Shri Girwar Singh Chouhan was set aside, as his evidence related to matters on which the plaintiff bore the burden of proof and no exceptional circumstance justified its production in rebuttal.

Pending applications, if any, were also disposed of.