K. Jagannatha Shetty, J.
1. The facts relevant for determination of the question in controversy may briefly be stated as follows:--
In a suit for redemption instituted by the respondent before the Civil Judge, Raichur, number of issues were framed. The burden of proving most of these issues lies on the defendant. Having regard to the nature of the issues, the trial Court called upon the defendant to begin and lead evidence in the case. The defendant accordingly produced all his evidence and closed his case. The plaintiff thereafter was called upon to produce his evidence, which he did, and closed his case. The case was set down for arguments. It is at that stage that the defendant made an application purporting to he under Rules 2 and 3 of Order XVIII of the Code of Civil Procedure seeking leave of the Court to adduce his evidence by way of rebuttal on issue No. 6. Issue No. 6 reads as follows:-- 'Is plaintiff entitled to claim mesne profits at Rs. 300/- per month from 20-3-1966 to 10-3-1967 ?'
The burden of proving this issue admittedly lies on the plaintiff. As above stated, the plaintiff has also produced evidence on this issue. The trial Court rejected the application of the defendant on the ground that he having commenced the case did not reserve his right to produce his rebuttal evidence. It is against this order dated 34-11-1969 that the revision petition is filed.
2. It may be stated that the defendant before he began or at any stage thereafter has not expressed his intention or reserved his right to lead rebuttal evidence on issue No. 6. That being the case, the question is whether he should be permitted to produce rebuttal evidence, under Rule 2 or 3 of Order XVIII of the Code of Civil Procedure. Order XVIII, Rule 3, Civil Procedure Code provides that:
'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 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.'
It is clear from these provisions that in a case where the burden of proving some of the issues lies on one party, then, in such a case, it is open to the party beginning, if he so chooses to reserve his evidence by way of rebuttal to the evidence to be produced by the other party. In the present case, however, (he defendant was conceded to have the right to begin, as contemplated under Rule 1 of Order 18 of the Code of Civil Procedure. It is for him, to exercise his option to adduce the rebuttal evidence on issue No. 6. The question is when he could exercise his option. Sri Chandrasekhar, the learned counsel for the respondent submits that he should have done so either before he began, or closed his case.
3. It is true that the law does not prescribe a stage at which a party should apprise the Court of his exercising the option under Rule 3 of Order 18. But it is reasonable that this should be done before he begins to adduce his evidence, and in any case before the other party begins his evidence, so that it might be borne in mind that the party beginning has not closed his evidence. This view of mine is also supported by the ratio of the decision reported in : AIR1969AP82 (I. Nookalamma v. I. Simhachalam.) In the instant case, it is found by the trial Court that the defendant has not exercised his option to produce rebuttal evidence at any one of the stages above mentioned. I am, therefore, of the opinion that the petitioner cannot avail, himself of the provisions of Order 18, Rule 3 of the Code of Civil Procedure.
4. Mr. Raikote, the learned counsel appearing for the petitioner submitted that the Court has got ample jurisdiction under the Explanation to Rule 2 of Order XVIII of the Code of Civil Procedure for the reasons to be recorded in writing, to direct any party to examine any witness at any stage. This provision, according to him, enables him to adduce rebuttal evidence. That is really the power of the Court to be exercised in the interest of justice and is not a right conferred to any party.
5. In view of this, I am of the opinion that the order made by the lower Court is correct and does not call for any interference by this Court. The revision petition is therefore dismissed. In the circumstances of the case, there will be no order as to costs.