Bihari Lal vs Puran

Kamlesh Sharma, J.—In this revision petition, the petitioner is the plaintiff whereas respondent is the defendant and they will be referred to as such in this judgment. The plaintiff is aggrieved by order dated 19.1.1999 passed by Sub Judge 1st Class (2), Nurpur, District Kangra, whereby the prayer of the plaintiff to adduce evidence in rebuttal was rejected on the ground that earlier he had neither appeared in the witness box to begin his case nor exercised his option to lead evidence in rebuttal. According to the trial Court, in this background, there is no provision in law to permit the plaintiff to adduce evidence in rebuttal as he had only placed on record the documents Ext. P-1 to Ext. P-3 and had not either adduced any oral evidence or appeared himself as his witness.

After hearing learned counsel for the parties and going through the record, this Court finds that the impugned order cannot stand judicial scrutiny. Firstly, while producing documentary evidence Ext. P-1 to Ext. P-3 learned counsel for the plaintiff had given the statement that evidence of the plaintiff was closed in affirmative which shows that the right to adduce evidence in rebuttal on the issues, onus whereof is on the defendant, was reserved. Procedure for examination of the witnesses laid down under order 18 CPC. Rule 1 of Order 18 CPC provides that the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin. Under Rule 2 of Order 18 CPC the party having the right to begin shall state his case and produce his evidence on the issues which he is bound to prove and thereafter the other party shall state his case and produce his evidence. Under sub Rule (4) of Order 18 CPC it is specifically provided that notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage. This provision has been inserted by Act No. 104 of 1976 with effect from 1.2.1976.

In this case, we are directly concerned with Rule (3) of Order 18 CPC. It is:

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 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 perusal of Rules 1 to 3 of Order 18 CPC makes it clear that in the normal course it is for the plaintiff to begin by appearing as his witness and producing other evidence in support of his case but if there are several issues and burden of proving some of them lies on the defendant he may exercise his option either to produce his evidence on those issues or reserve it by way of answer to the evidence produced by the defendant and in the latter case the plaintiff may produce evidence on those issues after the defendant has produced all his evidence but he would have right to reply specially on the evidence so produced by the plaintiff. Option to reserve right of rebuttal need not always be express but it can also be implied from the facts of the case.

Applying these provisions of law to the facts of the present case, this Court has no hesitation that instead of appearing as his own witness and adducing evidence in affirmative on issues No. 1 and 2, whose onus was on him, the plaintiff had produced only three documents Ext. P-1 to Ext. P-3 and closed his case in affirmative from which it is clear that the plaintiff had impliedly reserved his right to adduce evidence on the issues, onus whereof is on the defendant, after he would close his evidence. In these circumstances, the trial Court is not right in saying that the plaintiff has not adduced oral evidence and he has no right to adduce evidence in rebuttal on issues onus whereof is on the defendant. In fact, he has not referred to the statement of learned counsel appearing on behalf of the plaintiff who had tendered documents Ext. P-1 to Ext. P-3 in evidence and closed the evidence in affirmative.

This Court would like to make it clear that in such a case the plaintiff cannot give evidence on issues onus whereof is on him these are issues No. 1 and 2 in the present case, as he has failed to give any oral evidence on these issues and has already closed his evidence thereon by producing documents. For taking this view, this Court has relied upon the judgment of Andhra Pradesh High Court in Nalajala Narasayya Vs. Nalajala Sitayya and others, and Jaswant Kaur and Another Vs. Devinder Singh and Others,

Learned counsel for the defendant has referred to Rule 3-A of Order 18 CPC to point out that the plaintiff cannot be permitted to appear as his witness after he has produced his evidence may be documentary evidence Ext. P-1 to Ext. P-3. This argument has been raised to be rejected as Rule 3-A of Order 18 CPC is not attracted in the present case. It is not a case where the plaintiff has produced other oral witnesses and intends to appear as his own-witness thereafter.

The result of above discussion is that there is merit in this revision petition and it is allowed and impugned order dated 19.1.1999 passed by Sub Judge 1st Class (2), Nurpur, District Kangra, is set aside. The trial Court is directed to give opportunity to the plaintiff to adduce evidence in rebuttal on the issues, onus whereof is on the defendant, in accordance with law. No order as to costs.

Parties are directed to appear before the trial Court on 23.8 1999. CMP No. 75/99.

In view of the order passed in the main matter, this application is also disposed of and interim order dated 16.3.1999 stands vacated.