Kulbushan Kumar vs Jatinder Nath

(1) This revision arises out of a suit for ejectment. The trial court framed several issues, out of which the burden of proof of some lay on the plaintiff

and some others on the defendant. To begin with, the plaintiff produced his evidence. He closed his evidence without expressly reserving his right

to produce rebuttal evidence. Thereafter the defendant Jed his evidence At the conclusion of the defendant's evidence, counsel for the plaintiff

^claimed to produce rebuttal evidence and the counsel for the defendant opposed the claim on the ground that the plaintiff had not expressly

reserved his right to produce the rebuttal evidence at any previous stage of the proceedings. The trial court repelled the objection and granted the

plaintiff permission to lead rebuttal evidence. Against this order, the defendant has come up in revision to this court.

(2) For the petitioner it was contended that the plaintiff's claim to adduce evidence by way of rebuttal was barred as he had not expressly reserved

such right either at the commencement or at the close of his evidence or even at any time thereafter before the defendant commenced to lead

evidence, For this, he relied upon the provisions of Order 18 Rule 3 of the Code of Civil Procedure and their decision based thereon of the

Andhra Pradesh High Court in the case of Illapu Neekalamma Versus Illapu Simchachalam. (A. I. R. 1969 Andhra Pradesh 82). Order 18 Rule 3

of the Code of Civil Procedure provides :

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 tbe other party ; and, in the later case, the party beginning

may produce evidence of those issues after the other party has produced all his evidence, and the other party may then reply especially on the

evidence so produced by the party beginning ; but the party beginning will then be entitled to reply generally on the whole ease.

(3) It will be noticed that this rule contemplates a case where there are several issues the burden of proving some of which lies on one party and of

some others on the other party. The rule provides that in such a case the party beginning shall the issues or in respect of such issues only the burden

whereof is on it and leave the rebuttal evidence in respect of the issues onus where of is on the other party, to be produded only after such party

has produced hisevidence. There is nothing in this rule to suggest that the option should be exercised in a particular form or at any particular stage.

All that is necessary is that the party beginning should not have produced any evidence by way of rebuttal before the commencement of the

evidence by the other party. Accordingly where the question arises whether the party beginning should be allowed to produce any evidence fey

way of rebuttal after the completion of his evidence by the other party, all that the court has to be satisfied about, is whether or not the party

beginning has adduced any evidence by way of rebuttal before the commencement of evidence by the other party. If the court finds that such

rebuttal evidence has already been produced by the party beginning then it should refuse permission to produce such evidence. On other hand, if it

finds that no such rebuttal evidence has come on record, it should permit the party beginning to produce such evidence. In the case of Illapu

(Supra) the Andhra Pradesh High Court has held that in order to entitle the party beginning should have made an express reservation before the

commencement of his evidence by the other party. On this interpretation we are asked to read order 18 Rule 3 as if instead of words ""reserve by

way of answer to the evidence produced by the other party the Legislature had enacted the words ""expressly reserve it by way of answer to the

evidence adduced by the other party"" in this rule. This is not permissible Moreover rules are intended to held and not hinder the cause of justice.

On this interpretation, many a litigants may not be able to produce rebuttal evidence on the technical ground that they have inadvertently omitted to

intimate their option to the court before the commencement of the evidence by the other party. This is what the legislature could not have intended.

With all respects to the learned Judges, I am not, therefore, inclined to accept this interpretation.

(4) In the present case, the trial court has found that while adducing his evidence the plaintiff had not produced any rebuttal evidence in respect of

the issues the burden n whereof lay on the defendant. Applying the about test the court was justified in allowing the defendant to produce the

rebuttal evidence even if he had not expressly reserved his right to produce such evidence at any previous stage of the trial.

(5) Accordingly there is no merit in this revision which is hereby dismissed but without any order as to costs.