H.L. Anand, J.
(1) By this petition under Section 115 of the Cods of Civil Procedure the defendant in a suit out of which it has arisen assaits the order of the trial Court by which the trial Court over ruled the objection of the petitioner to any opportunity being given to the plaintiff/respondent No. 1 herein to produce evidence on issues 2 and 3 of which the onus was on the petitioner.
(2) It is the admitted case of the parties that onus of issues 2 and 3 was on the petitioner/defendant but it appears that after producing his evidence, the palintiff/respondent No. 1, made an unqualified statement closing his evidence without reserving his right to give evidence in rebuttal on issues 2 and 3. However, in the application made by the plaintiff/respondent No. 1 on March 22, 1969. for summonig witnesses, the plaintiff had recorded that the plaintiff reserved his right of rebuttal, if any. and when the plaintiff sought to produce the evidence in rebuttal on the aforesaid issues, an objection was taken on behalf of the petitioner that in the absence of reservation by the plaintiff under Order 18, Rule 3 of the Code of Civil Procedure, the plaintiff was not entitled to give any such evidence. This objection was over ruled by the impugned order.
(3) In the course of the Order, the trial Court has come to the conclusion that the reservation of the righ to produce evidence in rebuttal contained in the plaintiff's application dated March 22, 1969, was sufficient reservation in law within the meaning of the provisions of Order 18 Rule 3 of the Code of Civil Procedure to entitle the plaintiff to produce such evidence. The contention of the petitioner that inasmuch as, the plaintiff had produced some evidence touching the aforesaid issues, and was thereforee, disentitled to lead any evidence in rebuttal was repelled on the ground that even if the plaintiff had produced some evidence on the issues of which the onus was on the other side, there was nothing to prevent the plaintiff to seek an opportunity to produce evidence in rebuttal if the plaintiff had made the necessary reservation according to law.
(4) Learned counsel for the petitioner contends that the provision of Order 18, Rule 3 of the Code of Civil Procedure give an option to the plaintiff to reserve a right to give evidence on issues of which the onus may,be on the other party, but such option must be exercised in clear and catalgorical terms before the plaintiff closes his case so that the defendant has had ample notice of such reservation and could modulate his own evidence accordingly. Learned counsel, however, does not dispute that the plaintiff purported to make a reservation in his application of March 22, 1969, but submits that the attention of. the defendant had never been drawn to the said reservation before the defendant produced and closed his evidence and that the defendant would be seriously prejudiced if the plea of the plaintiff was accepted, in that, in the absence of a definite statement making reservation, the defendant was entitled to Act under the belief that the plaintiff had exhausted his entire evidence including the evidence that the plaintiff had to produce on the two issues referred to above.
(5) Order 18 Rule 3 of the Code of Civil Pcocedure provides that in cases where onus of some of the issues is on the party which is to open the case while that of certain other issues on the other party, it is open to the party which is to open its case to give its entire evidence or to give evidence only in respect of issues of which onus was on him while reserving his right to produce evidence on issue of which onus was on the other side'. That is the evidence which is commonly described as evidence in rebuttal. The Code. however, does not lay down either the manner or the form in which or the stage at which this option must be exercised and there has been a conflict of judicial opinion on the question as to the timing of such an. option. Some High Courts have taken the view that the option must bs exercised before the plaintiff commences his evidence while others have taken the view that it can be exercised any time before the other side starts its evidence.
(6) Be that as it may, if the purported reservation In the application of March 22, 1969 was a substantial compliance with the requirements of rule 3 of order 18 of the Code of Civil Procedure, it could not be said that this reservation was belated because the application was made long before the plaintiff produced his evidence, lam, however, unable to sbscribe to the view that the purported reservation recorded in the application falls short of the reservation envisaged by Rule 3 and I am in agreement with the conclusion of the learned trial Court that the aforesaid reservation was sufficient compliance with the requirement of law.
(7) While learned counsel for the petitioner is Justified in his contention that Rule 3 contemplates that the plaintiff may either give his entire evidence or may make the necessary reservation, the further contention that the fact that some evidence, which had relevance to the aforesaid two issues, had in fact been produced by the plaintiff would deprive the plaintiff of the right to produce evidence in rebuttal, even if a valid reservation had been made by the plaintiff, cannot be accepted and I have held above that the reservation made in the application complied with the requirement of law.
(8) It must, however, be 'pointed out that the object of Rule 3. seems to be,that while exercising the option, the plaintiff has to make a disclosure if the evidence being produced by the plaintiff is the evidence in its totality or the plaintiffs is still to give evidence in respect of issues on which he was not bound to produce evidence at the initial stage. Such a disclosure is bound to have its impact on the quantum of evidence that the defendant may give because if the defendant knows that the evidence produced by the plaintiff is all the evidence that the plaintiff has to produce even on issues of which onus may be on the defendant, the defendant would be entitled to modulate his own evidenc accordingly and if in such a situation the plaintiff who had failed to make a reservation turns round after the defendant closes his evidence with a otion that the plaintiff may be allowed, to produce evidence in rebuttal, the defendant may beprejudiced if such a plea succeeds.
(9) Although in the present case, a valid reservation had been made by the plaintiff By his application, there is some justification in the contention of learned counsel for the petitioner that the defendant was not aware of the contents of that application since this was not the usual way of makings. reservation and leave to the plaintiff to produce any rebuttal would cause prejudice to the defendant unless the defendant was allowed to produce additional evidence on the aforesaid issues.
(10) In the circumstances, the fair order according to me to make would be to dismiss the petition, confirm the order of the trial Cour with a direction that before the plaintiff is allowed to produce evidence in rebuttal on the aforesaid issues, a suitable opportunity may be given to the petitioner to produce additional evidence on the said issaes and I direct accordingly.
(11) In the circumstances, there would be no costs.
(12) The parties are directed to appear before the trial Court on September 11, 1974 by which date the records of that Court be also transmitted to it for further proceedings.