Ramalingappa vs Noorsab

T.N. Vallinayagam, J.-Being aggrieved by the order dated 13-1-1999 passed by the Principal Civil Judge (Junior Division), Gangavati on I.A. No. 15 in O.S. No. 104 of 1992, the petitioner has preferred the above revision petition.

The brief facts are: The respondent herein has filed the suit for declaration of his ownership and for possession of the suit land against the petitioner and other defendants. In the said suit, the respondent herein had filed an application under Order 18, Rule 3 seeking permission for reserving his right for leading rebuttal evidence on Issues 5, 6 and 7. The said application came to be allowed by granting permission for leading rebuttal evidence on Issue 5, after the evidence of the defendants. Aggrieved by the same, the petitioner has preferred this revision.

Heard the learned Counsel for the petitioner.

The question that is raised in this revision is one about the plaintiff''s right to attack by leading rebuttal evidence after closure of the evidence of the defendant.

@BODY-LSP = 5. The Trial Court relied upon the dictum laid down in S. Chandra Keerti v Abdul Gaffar by L.Rs, 1970(2) Mys. L.J. 201, Nalajala Narasayya v Nalajala Sitayya and Others, AIR 1992 AP 97. Analysing the issues that are framed, the Trial Court came to the conclusion that the plaintiff is entitled to rebuttal evidence and consequently I.A. filed by the plaintiff was allowed.

Challenging the same, the revision petition is filed, contending that the application is premature and Issues 6 and 7 are pertaining to the question of law and facts which can be proved by the plaintiff or defendant or the Court can raise such a question without the proof of the evidence.

The dictum of this Court in Ravindra Pai B.H. v K. Sulochana Bhandarkar, 1981(1) Kar. L.J. 134, is to the following effect:

"When plaintiff opened the case and stated that she had no oral evidence to adduce, that was in fact and in law nothing but beginning of the case and as such plaintiff had the right to produce rebuttal evidence on Issues 2 and 3.

Rules 1, 2 and 3 of Order 18 of the Civil Procedure Code have to be read together and there is no stage prescribed by Rule 3 for the party beginning to reserve his right to produce rebuttal evidence. If the party applies to reserve his right to produce rebuttal evidence immediately after closing its side and before the beginning of the evidence by the other side, it would have complied with Rule 3.

The omission of the Court to pass orders on the memo would not take away the right of the party to produce rebuttal evidence and it would be always open to the Court to permit the party to produce rebuttal evidence".

In Motibhai Prabhubhai v Umedchand Kasalchand, AIR 1956 Sau. 52, a Division Bench of that Court has held as follows:

"The expression used in Rule 3 is "the party beginning" and this expression is to be read in the context of the words "the party having the right to begin" used in Rule 2. Therefore, reading the two rules together in their proper context, it is clear that the option is to be exercised at the time the party (having the right to begin) begins and states his case and not at any earlier moment. Therefore nothing in Rule 3 to suggest that the option is to be exercised beforehand, nor again is there 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 his case and at that time he exercises the option and intimates to the Court that he will either produce evidence on all the issues including those the burden of proving which lies on the opposite party or that he will reserve his evidence on these latter issues".

In the light of the above dicta and the reasoning given by the Trial Court, on the basis of the analysis of the issues raised, I find the order passed by the Trial Court is proper and no interference is called for by this Court sitting in revision.

The CRP is dismissed.