Smt. Soma Devi & Others vs Sri Rajesh Kumar

Manoj K. Tiwari, J.

This petition under Article 227 of Constitution of India is directed against the order dated 06.10.2018 passed by 2nd Additional District Judge, Rishikesh, District Dehradun in Civil Revision No.65 of 2018. The order dated 17.03.2018 passed by Additional Civil Judge (J.D.), Rishikesh, Dehradun whereby it was provided that plaintiff/petitioner's application under Order 18 Rule 3 C.P.C. will be disposed of after cross examination of P.W.3, has also been challenged in the present writ petition.

Petitioner no.1 is plaintiff in Original Suit No.07 of 2008. On 26.02.2018, he (plaintiff) moved an application stating that burden of proving issue nos.3, 4, 6, 7, 8 and 10 is upon the defendant and the burden of proving remaining issues is upon the plaintiff/petitioner no.1. In paragraph 8 of his application plaintiff/petitioner no.1 stated that he reserves his right to produce evidence in rebuttal after the evidence is led by defendant in support of his case.

Vide order dated 17.03.2018, learned trial court provided that the application filed by the plaintiff/petitioner no.1 can be disposed of only after cross examination of P.W.3. Plaintiffs/petitioners filed a revision, which was dismissed vide judgment and order dated 06.10.2018 on the ground that no order has been passed on petitioners' application. Thus, feeling aggrieved petitioners have approached this Court challenging the orders passed by the trial court as well as revisional court.

Order 18 Rule 3 of C.P.C. has been amended by Allahabad High Court. The amended provision reads as under:-

"Allahabad-For the present Rule 3, substitute the following:

"3.(1) 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 state his case in the manner aforesaid and produce his evidence on those issues or reserve the statement of his case and the production of his evidence on those issues by way of answer to the evidence produced by the other party; and, if the latter is the case, the party beginning may state his case in the manner aforesaid and produce evidence on those issues after the other party has produced all his evidence.

(2) After both parties have produced their evidence, the party beginning may address the Court on the whole case; the other party may then address the Court on the whole case; and the party beginning may reply generally on the whole case, provided that in doing so he shall not, without the leave of the Court, raise questions which should have been raised in the opening address." Order 18 Rule 3 of C.P.C. was considered by a Full Bench of Hon'ble Allahabad High Court in a judgment reported in [2001(45) Allahabad Law Report 73]. Paragraphs 19 and 23 of the said judgment are extracted below:-

"19. The Allahabad High Court amendment of Rule 3 gives the plaintiff of a suit a right to elect one of the two courses open to him and to proceed according to one elected by him. The following of a particular course is preceded by the act of electing that course. The result is that the stage of election is preceded by the leading of evidence, the natural consequence whereof is that the intimation of that election to the Court should also be at that state, otherwise there is no meaning in it. Thus, the stage when the party beginning the evidence has to apprise the Court of his election to reserve his right of rebuttal evidence is when he begins.

The crux of the matter is that since the plaintiffs have not exercised their option of keeping their right reserved to make statement and lead evidence in rebuttal at the time of making their statement under Order

18 Rule 2 CPC, i.e., before they started leading evidence, they cannot now be permitted to exercise that option at this stage and reserve their right to lead evidence in rebuttal under Rule 3 of Order 18."

Admittedly, in the present case, the petitioners did not exercise their option before leading the evidence, therefore, this Court does not find any infirmity in the order passed by learned trial court. Accordingly, the writ petition is dismissed. However, since petitioners' application has not been decided so far, therefore, learned trial court is requested to decide the petitioners' application after completion of cross examination of P.W.3 and before defendant's evidence.