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Shanker Vs. Lali and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 261 of 1982
Judge
Reported in1982WLN663
AppellantShanker
RespondentLali and anr.
DispositionPetition dismissed
Cases ReferredMommial Yasudevi Murthy v. Dommide Bhasker Rao
Excerpt:
.....supporting plaintiff--burden of proof on plaintiff--held, such defendant cannot have right to lead evidence in rebuttal;the petitioner, who is a defendant supporting the plaintiff's case could have led evidence, if he desired to do so, immediately after the plaintiff closed her evidence so that the contesting defendants would have got an effective opportunity to produce evidence in rebuttal of the evidence led by the plaintiff as well as the petitioner, who is a defendant supporting the plaintiff's case.;only the party beginning has the right to lead evidence in respect of these issues of which the burden is placed upon him and reserve his right to produce evidence in rebuttal in respect of those issues of which the burden is placed on the other party. the petitioner could have..........then it is settled law that the defendants who support the plaintiff, in whole or in part, should lead evidence first before the contesting defendants, who are opposed to the case set up by the plaintiff. the order in which the defendants can be allowed to lead their evidence becomes important only when one of them or one set of defendants supports the case of the plaintiff, in whole or in part, while the other defendant or the other set of defendants oppose the case of the plaintiff.6. when all defendants oppose the case of the plaintiff then there is no difficulty in fixing the order in which evidence has to be jed. even if there are mare than one set of defendants each one opposing the plaintiff's case, then any of those defendants may lead evidence after the closure of the.....
Judgment:

D.P. Gupta, J.

1. This revision petition has been filed against the order passed by the Munsif Sojat, rejecting the petitioner's application for leading his evidence.

2. The petitioner claims to be the adopted son of Bherji Mali and it is not disputed that the interest of the petitioner, who is a defendant in the suit, is identical to that of the plaintiff, who is her adoptive, mother, Smt. Lali wife of Bherji Mali. The trial court framed the issues in the suit, including one relating to the adoption of the petitioner, as his adoption was alleged by the plaintiff but was denied by the contesting defendant. The burden of some of the issues was placed on the contesting defendants Nos. 2 and 3. The plaintiff examined her evidence first. Then July 30, 1982 was fixed for examining the evidence of the contesting defendants. On that date, the contesting defendants led their evidence. Thereafter, on that very day, the petitioner filed an application stating that he could not file a list of his witnesses earlier, as he did not know what evidence would be led by the contesting defendants and it was only thereafter that he could decide as to which witnesses should be examined by him in his evidence. The petitioner thus prayed for an opportunity to lead his evidence. The trial court refused to allow the plaintiff the desired opportunity on the ground that an ex-parte order was passed against the defendant petitioner on April 4, 1979 which was still in force and that the petitioner did not file any list of his witnesses, although he has already been examined as a witness. It was observed by the trial court that none of his witnesses were present in the court and further he could not have been allowed any opportunity to produce evidence in rebuttal to the evidence led by the contesting defendants.

3. In this revision petition, learned Counsel for the petitioner urges that the grounds given by the trial court for disallowing the petitioner to examine his evidence are erroneous and that the petitioner should be allowed an opportunity to produce his evidence. Although, an exparte order was passed against the petitioner on April 4, 1979, yet it could only restrain him from filing his written statement, for which the case was fixed on that date. The petitioner was thereafter allowed to participate in the proceedings and was also allowed to cross-examine the witnesses produced by the contesting defendants. It is urged that an opportunity could not have been refused to him to examine his witnesses, only on the basis of the ex-parte order passed on April 4, 1979.

4. It is not disputed that the petitioner did not produce any list of the witnesses desired to be examined by him as required under Order 16 Rule 1 CPC. Under Sub-rule (3) of rule 1 of Order 16 CPC, the petitioner could have been allowed to produce such witnesses whose names were not included in the list of his witnesses if he showed sufficient cause for the omission to mention the names of such witnesses in the list which he might have filed or if he could show sufficient cause in the present case for the earlier omission on his part to file the list of his witnesses. The cause, which is now being attempted to be made out by the petitioner, is that he could not know as to what witnesses he would be required to examine till the witnesses of the contesting defendants were examined, as the petitioner desired to produce evidence in rebuttal of the evidence led by the contesting defendants in the suit.

5. Rule 2 of Order 18 CPC provides that the party having the right to begin shall first produce his evidence in support of the issues which he is bound to prove and thereafter the 'other party shall produce his evidence.' Rule 3 of Order 18 further provides 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 at the time of producing evidence in support of the issues of which the burden was placed upon that party, or reserve it by way of answer to the evidence produced by the other party and in the latter case the party beginning will have an opportunity to produce evidence in rebuttal in respect of those issues of which the burden was placed on the other party, after the other party has produced all his evidence Where there are two sets of defendants, one set supporting the plaintiff and another set of defendants opposing the plaintiff, then it is settled law that the defendants who support the plaintiff, in whole or in part, should lead evidence first before the contesting defendants, who are opposed to the case set up by the plaintiff. The order in which the defendants can be allowed to lead their evidence becomes important only when one of them or one set of defendants supports the case of the plaintiff, in whole or in part, while the other defendant or the other set of defendants oppose the case of the plaintiff.

6. When all defendants oppose the case of the plaintiff then there is no difficulty in fixing the order in which evidence has to be Jed. Even if there are mare than one set of defendants each one opposing the plaintiff's case, then any of those defendants may lead evidence after the closure of the plaintiff's evidence and the other set of defendants may lead evidence thereafter. But where some of the defendants support the case of the plaintiff, in whole or in part, then the order in which the parties should be allowed to lead evidence becomes important and the defendants who support the case of the plaintiff should lead their evidence first before those defendants who oppose the case of the plaintiff. This is necessary so that the defendants opposing the case of the plaintiff may have an opportunity to rebut not only the evidence Ltd. by the plaintiff, but also the evidence led by those defendants who are supporting the plaintiff's case in whole or in part. The defendants opposing the plaintiff's case must ha can effective opportunity to rebut the evidence led by those defendants who support the plaintiff's case in the suit, in whole or in part, and thereby stand on the same footing as a plaintiff. In Collector of Sales Tax v. A.R. Alladin : AIR1964Guj26 , it was held that when the defendants ate divided into two groups, one group Consisting of the defendants supporting the plaintiff's case in part and the other group consisting of defendants, who do not support the plaintiff's case in any part, then the question of the order in which the defendants would be allowed to lead evidence becomes important. In such cases, amongst the defendants the order of leading evidence should be as follows:

(1) Those defendants who fully support the case of the plaintiff

(2) Those defendants who partly support the case of the plaintiff

(3) Those defendants who do not support the case of the plaintiff in any part

7. The same view was expressed in Mommial Yasudevi Murthy v. Dommide Bhasker Rao ILR 1975 AP 307 and it was held in that case those defendants who wholly or partly support the plaintiff's case should lead their evidence immediately after the plaintiff has closed his evidence and before the other defendants who oppose the case of the plaintiff are asked to lead their evidence. In the present case, the petitioner, who is a defendant supporting the plaintiff's case, could have led evidence, if he desired to do so, immediately after the plaintiff closed her evidence so that the contesting defendants would have got an effective opportunity to produce evidence in rebuttal of the evidence led by the plaintiff as well as the petitioner, who is a defendant supporting the plaintiff's case.

8. The contention of the learned Counsel for the petitioner that the' petitioner should be allowed to lead evidence in rebuttal cannot be accepted. As Order 18 Rule 3 CPC clearly provides, that only the party beginning has the right to lead evidence in respect of those issues of which the burden is placed upon him and reserve his right to produce evidence in rebuttal in respect of those issues of which the burden is placed on the other party. The petitioner could have applied for being transposed as a plaintiff if he at all desired to lead evidence by way of rebuttal. It is only the plaintiff in the present case who can be considered to be the party beginning and she could have reserved the right to lead evidence by way of rebuttal to the evidence produced by the other side, in support of those issues of which the burden was placed on the contesting defendants. The petitioner defendant, thus, could not have been allowed any right to lead evidence by way of rebuttal; after the contesting defendants have led their evidence. The petitioner could have led his evidence, if he at all desired to produce any evidence, after the plaintiff closed her evidence and before the contesting defendants were called upon to lead their evidence. But the petitioner did not seek any opportunity to lead his evidence at that stage If the defendant is allowed to produce his evidence now, then the contesting defendants would not get any opportunity to rebut the evidence which may be led by him and as observed earlier the defendant petitioner has no right to examine evidence by way of rebuttal, as he is supporting thesof the plaintiff and could lead evidence after the plaintiff's evidence was over. A second chance for producing his evidence in a suit could be available only to the party beginning, as provided in order 18 Rule 3 CPC.

9. In this view of the matter, the trial court was justified in refusing to allow the defendant petitioner an opportunity to lead evidence in rebuttal, after the contesting defendants had led their evidence. The revision petition accordingly has no force and the same is dismissed. But the parties are left to bear their own costs of the proceedings in this Court.


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