Prithvi Raj, J.
(1) [PETITIONER sued respondents for eviction on the grounds of non-payment of rent and sub- letting. Respondents 2 to 5 claimed that they were partners of the firm of no. 1. Petitioner gave her evidence and on conclusion stated that she closed her affirmative evidence. A.R.C. held that she had given all her evidence and was not entitled to rebuttal. She then made an application saying that onus of claim of respondents 2 to 5 that they are tenants as partners was on them and she should be allowed to rebut after they close their evidence. Application was rejected and she moved High Court u/Art. 227.] Para 9 onwards judgment is :-
(2) The instant case, however, is where the Controller had illegally refused to exercise jurisdiction vested in it by law in closing the evidence of the petitioner in rebuttal. 10 Section 37 of the Delhi Rent Control Act, 1968, lays down the procedure to be followed by the Controller. Sub-section (2) of the said section envisages that subject to any rules that may be made under the Delhi Rent Control Act, the Controller shall while holding an enquiry in any proceedings before it, follow as far as may be, the practice and procedure of a court of Small Causes, including the recording of evidence. Order 50 of the Code of Civil Procedure (herein called 'the Code') prescribes what provision of the Code shall apply 10 Courts constituted under the provincial Small Cause Court Act, 1887.
(3) A perusal of Order 50 of the Code makes it clear that in a small cause suit issues are not required to be settled. The provisions of Order 18, except rules 5 to 12, regarding hearing of the suit and examination of witnesses, are applicable to small cause suit. Rule 3 of Order 18 envisages 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 after the other party has produced all his evidence, and the other party may then reply specifically on the evidence so produced by the party beginning ; but the party beginning will then be entitled to reply generally on the whole case'.
(4) On the averments of the parties it cannot be denied that one of the questions involved in the dispute is whether respondents 2 to 5 are in occupation of shop premises in suit as tenants under the petitioner. Since the said respondents claim to be in possession of the suit premises as tenants under the petitioner, the burden of proving the said issue obviously was on them. That being so, it was competent for the petitioner while beginning her evidence either to produce her evidence on the said issue or reserve it by way of answer to the evidence produced by the respondents in which event she was entitled to produce evidence on that issue after respondents Nos. 2 to 5 had produced all their evidence. Evidence of Umrao Singh, husband of the petitioner, was read out to me. From a perusal of the said statement it is apparent that he gave evidence in respect of issues other than the one, onus of proving which was on respondents 2 to 5. Umrao Singh was cross-examined at length by the respondents in support of their assertion that respondents 2 to 5 were in occupation of the shop premises in suit as tenants under the petitioner. But that by itself cannot be enough to hold that the petitioner had led evidence on the said issue as well. As a matter of fact, Umrao Singh in his statement did not touch upon the said issue. That was why on the conclusion of bids statement on 21st May, 1973, counsel for the petitioner made a statement that 'he closes the evidence in- affirmative'. The petitioner reserved her right to lead evidence in rebuttal in respect of the issue the onus of proving which was on the respondents 2 to 5. It would have been better that before Shri Umrao Singh was examined, the petitioner should have apprised the Controller that he was examining the witnesses on the issues the burden of proving which lay on her but having not done so, she did not render herself disentitled to reserve her option to lead evidence in affirmative reserved her right to lead evidence in rebuttal. The petitioner in closing her evidence in affirmative reserved her light to lead evidence in rebuttal on the issue the proof of which lay on respondent. Shri V.S. Aggarwal, Additional Rent Controller, Delhi, however, taking into consideration the cross-examination directed on Shri Umrao Singh held that his entire statement was one which he should have made in rebuttal and that closing of the evidence in affirmative did not arise. He accordingly closed the evidence of the petitioner by his aforesaid order dated 21st May, 1973. On he same basis by subsequent order dated 9th July, 1973, he rejected the application of the petitioner to produce evidence in rebuttal.
(5) In Motibhai Prabbubhai v. Umendhand Kesalchand. A.I.R. 1956 S 52, a Division Bench of the said Court observed that reading rules 2 and 3 together of Order 18 in their proper context it is clear that the option to reserve evidence in rebuttal is to be exercised at the time the party (having the right to begin) begins and states his case and not any earlier moment. Further, there is nothing in rule 3 to suggest that the option is to be exercised before hand ; nor there is anything to show that a regular application has to be made to the court for the purpose. The scheme is that the party beginning states its case and at that time it exercises the option and intimates to the court that it will either produce evidence on all the issues including those the burden of proving which lies on the opposite party or that it will reserve its evidence on those issues. In Nanhey Raja Saheb v. Kedar Nath Air 1953 Vin Prad 34, it was observed that the law does not prescribe a stage at which a party should apprise the Court of its exercising the option under Order 18, rule 3. It is only reasonable that this should be done, if possible, before it begins ; and in any case before the other party beings its evidence so that it might clearly note that the first party has not really finished. In Inderjeet Singh v. Maharaj Raghunath Singh , it was held that the provision of Order xviii Rule 3 are sufficiently complied with if the party states before the other party begins its evidence that it is reserving its right to adduce evidence in rebuttal.
(6) In the instant case the petitioner on 21st May, 1973, while closing her evidence had clearly stated that she closed the evidence on issues in affirmative. The respondents were yet to begin their evidence. The option required to be exercised by the petitioner in pursuance of the provisions of Order xviii Rule 3 had been exercised by her at the right moment. In closing the evidence of the petitioner and refusing her the right to lead evidence in rebuttal the Controller illegally refused to exercise jurisdiction vested in it by law. In the circumstances, it would be appropriate to exercise powers under Article 227 of the Constitution of India to afford the necessary relief to the petitioner. (See Dehya Lala and others v. Rasual Mahomed Abdul Rahim and others (State of Maharashtra Intervener), : 3SCR1 ).
(7) The High Court is entitled in the exercise of its jurisdiction under Article 227 of the Constitution of India to set aside any order passed by a subordinate Court or Tribunal within its jurisdiction if the order is found to be wholly unsustainable. (See Boota Singh V. Roshan Lal 1970 R. C. R. 895. In Saral Dev Sharma v. Lila Ram, 1972: R.C.J. 542, Dalip Kapur J., observed that an order passed by the Tribunal being not in accordance with law would be subject to the superintending power of this Court, the order being defective in law.
(8) There can be no doubt that the impugned order is defective in law. The petitioner having exercised her option as required under Order xviii Rule 3, her evidence could not be closed in its entirety except on the issues in the affirmative. Merely because it would be open to the petitioner to challenge the impugned order in appeal from the final order, as was sought to be urged by the learned counsel for the respondents, cannot be made aground for refusing to grant the relief in this petition.
(9) In view of my discussion on the various points, noted above, the petition is. accepted. Orders dated 21st May 1973, and 19th July, 1973, passed by Shri V.S. Aggarwal. Additional Rent Controller, Delhi, are quashed. The trial Court is directed that an opportunity be granted to the petitioner to lead evidence in rebuttal on the issue sought to be canvassed by respondents Nos. 2 to 5 that they are in occupation of the shop premises in suit as tenants under the petitioner. The respondents shall also be entitled to lead further evidence on the conclusion of the evidence of the petitioner if the occasion so demands.