1. M/s. Prem Singh Partap Singh filed four separate suits for recovery of money against National Insurance Company Ltd. and others. The total sum involved in all the four suits is about a lac of rupees. On 19-3-1979, the plaintiff closed his evidence. On 15-12-1979. the defendants closed their evidence and the cue was adjourned to 19-1-1980 for rebuttal evidence of the Plaintiff. The witnesses could not be examined on some of the hearings. On 15-4-1980 Shri R. K. Puri a witness who was surveyor. was present but since he had not brought certain documents, recording of his statement was deferred and he was bound down to appear on 12th May. 1980. On 12th May. 1980 he did not appear. The defendant defendants raised objection on that date that Opportunity to lead evidence in rebuttal could not be granted to the plaintiff and. therefore. it was not necessary to wait for recording of statement of Mr. R. K. Puri. The matter was adjourned to 20th May, 1980 for arguments on this point. on 20th May. all the suits were dismissed in default and the applications for restoration of suits remained unsuccessful before the trial Court. The plaintiff went up in four appeals and the appellate Court allowed the appeals by order dated 19th May, 1982 and restored the suits and directed the parties to appear in the trial Court on 27th May, 1982. The defendants again raised their objection that the plaintiff could not be allowed opportunity of rebuttal in view of O. 18. R. 2. Civil P. C. since it did not reserve right to lead evidence in rebuttal. This objection of the defendants prevailed with the trial Court and by order dated 15th June. 1982 the plaintiff was denied opportunity to lead evidence in rebuttal. Against the aforesaid order passed in each of the four suits. Civil Revisions Nos. 1818 to 1821 of 1982 have been filed in this Court. Since common question arises in all the four revisions they are being disposed of by a common order.
2. The matter was referred for decision to a Division Bench and the Division Bench has ruled that it the. right to lead evidence in rebuttal is not specifically reserved by a party but it is possible to necesarily imply that the right of rebuttal had been retained then the right to lead evidence in rebuttal should not be negatived merely on the ground that it had not been so done in express terms. The view taken by the trial Court in declining an opportunity to lead evidence in rebuttal is contrary to the dictum of the Division Bench because the trial Court categorically recorded a finding that the right to lean evidence in rebuttal had to be reserves in express terms
3. The point which survives for consideration is whether it can necessarily be implied from the facts of the instant case that the right of rebuttal was retained then certainly the revisions will have to be allowed.
4. The facts which I have noticed above clearly go to show that the trial Court allowed opportunity to lead evidence in rebuttal way back on 15-12-1979 in the presence of the opposite side without objection or demur and there-after several dates were fixed for leading evidence in rebuttal and it was only at a very late stage that the defendants took up the objection of not granting opportunity to the plaintiff to lead evidence in rebuttal because the right was not reserved in express terms. Therefore it is clear that the trial Court as also both the parties were under the impression that the Plaintiff shad to lead evidence in rebuttal. Therefore it is a case where not only the plaintiff had impliedly kept his right of rebuttal reserved, it was so understood by the Court as also the opposite party.
5. For the reasons recorded above all these revisions are allowed the impugned orders passed by the Court below are set aside and direction is issued to the trial Court to Permit the plaintiff to lead evidence in rebuttal. Since no appearance has been put in on behalf of the respondents, there will be no order as to costs.
6. Revisions allowed.