P.K. Mohanti, J.
1. This revisional application is directed against an order of the trial court refusing to grant permission to the plaintiff to adduce evidence in rebuttal of the evidence produced by the defendants on issue No. 8.
2. The plaintiff-petitioner filed Title Suit No. 22 of 1973 in the court of the Subordinate Judge of Kendnapara challenging two sale-deeds dated 15-1-73 executed by his father (defendant No. 1)in favour of defendants 2 and 4 on the ground of want of legal necessity. On the pleadings of the parties as many as ten issues were framed. Issue No. 8 runs aa follows:
'Are the alienations made by defendant No. 1 for legal necessity and is the plaintiff bound by the transfer?''
3. The burden lies on defendants 2 and 4, who are purchasers under the impugned sale-deeds, to prove either that there were legal necessities in fact or that they made proper and bona fide enquiries as to the existence of such necessities and did all that was reasonable to satisfy themselves as to the existence of such necessities. It is not disputed that the burden of proving issue No. 8 lies on defendants 2 and 4 and that the plaintiff had to lead evidence on the other issues.
4. After concluding his evidence on the other issues, the plaintiff filed a petition under Order 18, Rule 3, C.P.C. for permission to adduce further evidence by way of rebuttal of the evidence to be produced by the defendants on the issues; the onus of which lay on them. The court directed the defendants to file their objections to the plaintiff's petition and proceeded to record the evidence produced by the defendants. After the defendants closed their evidence, the plaintiffs petition under Order 18, Rule 3 C.P.C. was taken up for consideration. The court rejected the petition on the grounds that the onus was on the plaintiff to prove all the issues, that the plaintiff had chosen in the first instance to give evidence on all the issues and that since the plaintiff had already closed his evidence, the benefit of the provisions of Order 18, Rule 3 C.P.C. was not available to him.
5. As indicated above, the burden of proving issue No. 8 lies on the defendants 2 and 4. The view taken by the trial court that the burden of proving all the issues lay on the plaintiff is erroneous.
6. Order 18, Rule 3 C.P.C. reads as follows: -
'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 theevidence 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 the above provisions that in a case where the burden of proving some of the issues lies on one of the parties, then, in such a case, it is open to the party leading evidence, 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, it was the duty of the plaintiff to lead evidence as the burden of proof lies on the person who would fail if no evidence is adduced on either side (vide Section 102 of the Evidence Act). It was for him to exercise the option to adduce the rebuttal evidence on issue No. 8 onus of which lay on the defendants 2 and 4. The question is at what stage the option is to be exercised. On a plain reading of the provisions of Order 18, Rule 3, C.P.C. I am unable to accept the view that a party having the right to begin would exercise his option before he leads his evidence. The law does not prescribe any particular stage at which the option is to be exercised. I am of the opinion that the provisions of Order 18, Rule 3 are sufficiently complied with if the party leading evidence intimates the court before the other party begins its evidence that it is reserving its right to adduce evidence in rebuttal on the other issues. I am fortified in this view by the decisions reported in AIR 1969 Andh Pra 82 (Illapu Nookalamma v. Illapu Simachachalam) and AIR 1971 Mys 17 (S. Chandra Keerti v. Abdul Gaffar). The plaintiff was, therefore, within his limits in exercising the option after the close of his evidence and before the commencement of the defendant's evidence.
7. It is no doubt true that if the plaintiff at the outset chooses to call any evidence covered by the option contemplated under Order 18, Rule 2, C.P.C., he will not be permitted to give further evidence in rebuttal of the evidence produced by the defendants. On a reference to the records it appears to me that the plaintiff has not produced any evidence on issue No. 8. After the plaintiff closed his case certain documents relevant to the issue were produced on behalf of the defendants and the same were proved through witnesses. The plaintiff had no opportunity of inspecting those documents and of adducing any evidence to repel the defendants' case. The trial courtwas therefore not justified in holding that the plaintiff had chosen in the first instance to give evidence on all the issues, 8. In the result, the order of the trial court is set aside and the Civil Revision is allowed, but in the circumstances, without any order as to costs. The plaintiff is permitted to adduce evidence 'by way of rebuttal on issue No. 8.