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Kalyan Dass Vs. Kishan Karan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 140 of 1974
Judge
Reported in1978(11)WLN83
AppellantKalyan Dass
RespondentKishan Karan
DispositionApplication allowed
Cases ReferredIn Aranya Kumar Pnuda v. Chintamani Panda and Ors.
Excerpt:
.....learned counsel for the defendant petitioner is that the plaintiff having failed to reserve his right of rebuttal, either at the time when he began his evidence or at the time when his evidence was closed, the trial court had no jurisdiction to allow the plaintiff any opportunity to adduce further evidence in rebuttal, merely on the ground of serving 'interest of justice'.on the other hand, the argument of the learned counsel for the non petitioner is that as the plaintiff cid not lead any evidence in respect of issue no. the rules of procedure have been prescribed in order to facilitate justice and fair trial and if the party beginning the evidence does not clearly indicate its intention to reserve its right of leading evidence in rebuttal, either at the time when it begins its..........no. 1 and 3 related to the same subject-matter and that the plaintiff having not reserved any right of rebuttal, an opportunity of leading further evidence could not be given to him by way of rebuttal. the trial court after making the aforesaid observation, still went to provide a further opportunity to the plaintiff to lead evidence in rebuttal 'in the interest of justice'. this order passed by the trial court on february 11, 1974 has been challenged by the defendant in the present revision application.2. the argument of the learned counsel for the defendant petitioner is that the plaintiff having failed to reserve his right of rebuttal, either at the time when he began his evidence or at the time when his evidence was closed, the trial court had no jurisdiction to allow the.....
Judgment:

D.P. Gupta, J.

1. This revision application arises out of a suit for possession and mesne profits filed on November 16, 1967, Six issues were framed in the suit of which issue No 3 was to the effect as to whether the defendant had purchased the disputed property by an oral sale dated January 24, 1644 and was in possession thereof in pursuance of the aforesaid sale. The trial court decided issue No. 5 as a preliminary issue on June 1, 1970 and thereafter the plaintiff's evidence was examined which was closed on 26.11.73 and subsequently the defendant's evidence was closed on 11.2.74. On the last mentioned date, the learned Counsel for the plaintiff urged that as the burden of issue No. 3 was on the defendant, the plaintiff should be allowed to lead evidence in rebuttal. The defendant objected to the same on the ground that issue No. 3 was framed by way of rebuttal to issue No. 3, which was to the effect as to whether the defendant was in possession of the suit premises on the basis of a licence granted by the plaintiff in the year 1953. The trial court accepted the contention of the learned Counsel for the defendant that issues No. 1 and 3 related to the same subject-matter and that the plaintiff having not reserved any right of rebuttal, an opportunity of leading further evidence could not be given to him by way of rebuttal. The trial court after making the aforesaid observation, still went to provide a further opportunity to the plaintiff to lead evidence in rebuttal 'in the interest of justice'. This order passed by the trial court on February 11, 1974 has been challenged by the defendant in the present revision application.

2. The argument of the learned Counsel for the defendant petitioner is that the plaintiff having failed to reserve his right of rebuttal, either at the time when he began his evidence or at the time when his evidence was closed, the trial court had no jurisdiction to allow the plaintiff any opportunity to adduce further evidence in rebuttal, merely on the ground of serving 'interest of justice'. On the other hand, the argument of the learned Counsel for the non petitioner is that as the plaintiff cid not lead any evidence in respect of issue No. 3 earlier, he should be considered to have exercised the option, within the meaning of Order 18, Rule 3 CPC, to reserve his evidence in respect of the said issue, the burden of which was placed on the other party. Learned Counsel for the plaintiff also submitted that as Order 18 Rule 3 does not specify the manner in which the option is to be exercised for reserving the right of rebuttal nor it prescribes the stage at which such option is to be exercised and as such the court should look to the evidence led by the party beginning evidence, in order to come to the conclusion as to whether that party had exercised the option reserving the right of rebuttal or not.

3. Order 18 Rule 3 CPC runs as under:

Evidence where there are several issues : 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 by 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 the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.

The aforesaid provision allows the party beginning its evidence an option either to lead its evidence in respect of all the issues including those issues of which the burden is placed on the other party., or to reserve the right to lead evidence later in respect off issues, the burden of which is cast upon the other party after the evidence of the other party is over. It is true that the stage at which the option is to be exercised is not indicated in the aforesaid provision, but the manner in which the option is to be exercised is provided in Order 18 Rule 3 CPC. It is clear that the party, who desires to exercise the option should either submit an application in writing or intimate to the court orally about its intention to reserve the right of rebuttal. As regards the stage when the option in respect of the right of rebuttal should be exercised it has been held in Inderjeet v. Maharaj Raghuncth Singh and Ors. 1969 WLN 238, that it would be reasonable if the option is exercised, if possible, before the evidence begins or in any case at the stage when such party closes its evidence. The intention is that before the other party begins its evidence, it should be clear to it that the party which has started leading evidence, has not finished its evidence but it intends to reserve its right of producing evidence in respect of issues, of which the burden is cast upon the other party and would do so by way of answer to the evidence produced by the other party. The rules of procedure have been prescribed in order to facilitate justice and fair trial and if the party beginning the evidence does not clearly indicate its intention to reserve its right of leading evidence in rebuttal, either at the time when it begins its evidence or at the time it closes its evidence, then the other party is likely lo be misled. In my view, it would be unfair to the other party, if the intention leading the evidence of reserving its right of leading further evidence by way of rebuttal is net made explicitly clear before the other party begins its evidence. In Aranya Kumar Pnuda v. Chintamani Panda and Ors. : AIR1977Ori87 , the same view has been taken and it has been observed that the provisions of Order 18 Rule 3 CPC would be sufficiently complied with if the party beginning the evidence intimates to the court before the other party begins with its evidence that it intends to reserve its right to adduce evidence in rebuttal on other issues, the burden of which is placed on the other party.

3. The trial court was therefore, not justified in allowing Section further opportunity to the plaintiff to lead evidence in rebuttal 'in the interest of justice', when it came to the definite conclusion that the plaintiff, having failed to reserve his right of leading evidence in rebuttal, was not entitled to any opportunity to do so. The plaintiff has no right left now to lead any further evidence in the case.

4. In the result, the revision application is allowed and the order passed by the Additional Civil judge, Jodhpur dated February 11, 1974 is set aside. The record of the trial court should be sent beck immediately to that further proceedings may be taken in the case. The trial court is directed to dispose of the case with great expedition. The parties are left to bear their own costs.


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