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illapu Nookalamma Vs. Illapu Simchachalam - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 672 of 1967
Judge
Reported inAIR1969AP82
ActsCode of Civil Procedure (CPC), 1908 - Order 18, Rule 3
Appellantillapu Nookalamma
Respondentillapu Simchachalam
Appellant AdvocateA.S. Prakasam, Adv. for ;P. Ramachandra Rao, Adv.
Respondent AdvocateM. Venkat Rao, Adv.
Excerpt:
.....trial court burden fell on plaintiff to prove all issues except two - plaintiff was first party to adduce evidence - after adducing her evidence plaintiff sought to reserve her right to adduce rebuttal evidence as regards those issues which were to be proved by defendant - trial court rejected plaintiff's request - whether plaintiff entitled to reserve her right to adduce evidence by way of rebuttal - as per order 18 rule 3 question of plaintiff adducing rebuttal evidence would arise only after defendant has produced his evidence - held, plaintiff entitled to reserve her right to adduce rebuttal evidence as regards those issues where burden was on defendant. - - order 1. this civil revision petition gives rise to an interesting question of law relating to the interpretation of he..........of the examination of the plaintiff's witnesses, a memo by her counsel reserving her right to adduce rebuttal evidence for the evidence that will be adduced by the defendant on issues nos. 8 and 9, was filed on 24-11-66. the defendant resisted the claim of the plaintiff to reserve her right to adduce rebuttal evidence at that stage, as being belated, as she should have, according to him, made that claim before she began to let in evidence in the beginning. the lower court, upholding the objection raised by the defendant, rejected the plaintiff's memo as unacceptable. aggrieved by that order, the plaintiff preferred this revision petition. 4. mr. a. s. prakasam, for the plaintiff, contends that the provisions of order 18, rule 3, civil procedure code do not bar the plaintiff's claim.....
Judgment:
ORDER

1. This Civil Revision petition gives rise to an interesting question of law relating to the interpretation of he scope and application of the provisions of Order 18, Rule 3, Civil Procedure Code.

2. The plaintiff-petitioner filed O. S. No. 12 of 65 on the file of the Court of the Subordinate Judge, Visakhapatnam, for declaration of her title and for possession of the suit properties. which is resisted by the sole defendant on several grounds.

3. The Trial Court has framed several issues. The burden is on the plaintiff with regard to all the issues except issues Nos. 8 and 9 with regard to which the burden is on the defendant. After the completion of the examination of the plaintiff's witnesses, a memo by her Counsel reserving her right to adduce rebuttal evidence for the evidence that will be adduced by the defendant on issues Nos. 8 and 9, was filed on 24-11-66. The defendant resisted the claim of the plaintiff to reserve her right to adduce rebuttal evidence at that stage, as being belated, as she should have, according to him, made that claim before she began to let in evidence in the beginning. The lower Court, upholding the objection raised by the defendant, rejected the plaintiff's memo as unacceptable. Aggrieved by that order, the plaintiff preferred this revision petition.

4. Mr. A. S. Prakasam, for the plaintiff, contends that the provisions of Order 18, Rule 3, Civil Procedure Code do not bar the plaintiff's claim to reserve her right to adduce evidence by way of rebuttal before the commencement of the evidence for the defendant and after the completion of the evidence for the plaintiff. Mr. Mangu Venkata Rao, for the respondent, contended contra.

5. The point for determination is whether the plaintiff is entitled to reserve her right to adduce evidence by way of rebuttal after the completion of the evidence on her side and before the commencement of the evidence for the defendant.

6. For a proper appreciation of the point at issue, it is necessary and relevant at this stage to consider the provisions of. Order 18, Rule 3, Civil Procedure Code, which read thus:-

'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 s produced by the party beginning but party beginning will then be entitled to reply generally on the whole case.'

Order 18, Rule 3, Civil Procedure Code entitled the party beginning to adduce evidence, either to adduce his evidence or reserve it by way of rebuttal to the evidence adduced by the other side on the issues, where the burden lies on the other party, and the party beginning will then be entitled to reply generally on the whole case. In other words, the expression 'party beginning' will have to be read with the words 'party having the right to begin' in Rule 2. In this case, admittedly it is the plaintiff that has to begin her evidence on the issues where the burden admittedly lies on her. As regards issues Nos. 8 and 9, where admittedly the burden is on the defendant. It is the defendant that has to lead evidence in so far as those issues are concerned, and the plaintiff will certainly have a right to adduce evidence by way of the rebuttal, but to acquire that right of adducing evidence by way of rebuttal, the plaintiff should conform strictly with the provisions of Order 18, Rule 3. Civil Procedure Code. She had to express her reservation to adduce evidence by way of rebuttal. but the pertinent question that arises in this case is as to at what stage or when exactly the plaintiff has option given to her under Order 18, Rule 3, Civil Procedure Code whether it is before the commencement of the plaintiff's evidence as contended by the defendant's Counsel, or after the completion of the evidence on the side of the plaintiff and before the commencement of the evidence for the defendant. A close reading of the provisions of Order 18, Rule 3, Civil Procedure Code makes it clear that the plaintiff is entitled to produce her evidence on those issues (issues Nos. 8 and 9) after the other party has produced all his evidence. That stage would come only when the defendant would complete the evidence of his witnesses. The question of adducing evidence by way of rebuttal would arise only after the evidence for the defendant is produced before the Court on the issue where the burden is admittedly on the defendant. The option given to the party contemplated under Order 18, Rule 3, Civil Procedure Code will have to be exercised only at or before the time when the other party that has got the right to lead evidence on issues Nos. 8 and 9 actually, begins, and not afterwards. Admittedly, the defendant has no right to adduce evidence on issues where the burden lies on him, before the completion of the evidence of the plaintiff's witnesses on the issues where the burden lies on the plaintiff. Hence, at that stage, the plaintiff can certainly claim the reservation contemplated under Order 18, Rule 3. Civil Procedure Code and request the Court that that right would be exercised by the plaintiff after the completion of the evidence of he defendant's witnesses, and a memo, in fact, has been filed before the defendant, who has a right to lead evidence on those issues Nos. 8 and 9, has actually commenced. Hence, on a close and careful reading of the provisions of Order 18, Rule 3, Civil Procedure Code, the plaintiff must be held to be within her limits in filing the memo, after the close of her evidence and before the commencement of the defendant's evidence, exercising the option contemplated in Order 18, Rule 3, Civil Procedure Code.

7. I shall now consider the case law on the subject. IN Motibhai Prabhubhai v. Umedchand Kusalchand, AIR 1956 Sau 52, a Division Bench of the Saurashtra High Court, held that the option is to be exercised at the time the party (having the right to begin) begins and states his case and not at any earlier moment and that there is nothing in Rule 3, to show that the option is to be exercised beforehand, not that a regular application has to be made to the Court.

8. In Nanhey Raja Saheb v. Kedar Nath, AIR 1953 Vindh Pra 34, Krishnan, J. C. of Vindhya Pradesh Judicial Commissioner's court held that the plaintiff was entitled to adduce evidence of rebuttal of the evidence adduced by he defence, before the other party begins his evidence.

9. In Ramachander Singh v. Bibi Asghari Begam. AIR 1957 Pat 224. the plaintiff filed a suit for specific performance against the 2nd defendant the vendor, and the 2nd defendant, the subsequent vendee, who claims to have purchased the property from the 1st defendant, without notice of the prior agreement in favour of the plaintiff. The plaintiff has let in evidence on his side in support of his claim for specific performance of the suit contract and the 1st defendant also had completed her evidence with regard to the suit agreement. At that stage, the plaintiff filed an application under Order 18, Rule 3, Civil Procedure Code reserving his right t adduce evidence by way of rebuttal to the evidence that would be produced by the 2nd defendant on issues relating to his subsequent purchase from the 1st defendant bona fide and without notice of the prior agreement in favour of the plaintiff. In those circumstances, it was observed by Raj Kishore Prasad, J., at page 226 thus:-

'It is only when the plaintiff has adduced evidence regarding the contract set up in the plaint between himself and the defendant 1, and after defendant 1 has adduced her evidence in rebuttal of the evidence adduced her evidence in rebuttal of the evidence adduced by the plaintiff regarding the contract between the plaintiff and defendant 1, that the turn of defendant 2 to adduce her evidence in support, of her subsequent purchase will come, and after that is done, the plaintiff will be at liberty to adduce his evidence in rebuttal of the same on issue No. 4 only.'

I respectfully agree with the observations of the learned Judge.

10. On the facts and in the circumstances and for the reasons stated above, I have no hesitation to hold that the plaintiff in the instant case is entitled either to adduce evidence after completion of the evidence on her side on other issues and before the defendant commences his evidence, straightway even on issues Nos. 8 and 9, or exercises her option to reserve her right to adduce evidence by way of rebuttal on those issues, after the evidence of the defendant is produced before the Court. Hence, the order of the Court below in rejecting the claim of the plaintiff cannot be sustained.

11. In the result, the order of the lower Court is set aside and the revision petition is allowed permitting the palintiff to reserve her right to adduce evidence by way of rebuttal on issues Nos. 8 and 9 and other issues where the burden lies on the defendant, after completing the evidence by the defendant. In the circumstances, there will be no order as to costs.

12. Revision allowed.


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