B H RAVINDRA PAI Vs. K SULOCHANA BHANDARKAR

JUDGEMENT

(1.) This Civil revision petition, by the defendant, is directed against the order dated 17th Septr., 1980 passed by the learned Prl.Civil Judge, Mangalore, Dakshina Kannada, in O.S. No. 175/80 per mitting the plaintiff to adduce rebuttal evidence There were three issues framed in the suit. The burden of proving Issue No.1 was on the plaintiff and that of Issue Nos. 2 and 3 was on the defendant. The suit was posted for recording evidence on 7-7-1980. The plaintiff-respondent was to lead evidence on that day on Issue No. 1. It was submitted on behalf of the plaintiff-respondent that she had no oral evidence to adduce on Issue No.1. She also filed a memo dt. 7-7-1980 on 8-7-1980 to reserve her right to produce rebuttal evidence on Issue Nos 2 and 3. However, no order was passed by the Court on that memo. The suit came to be posted for evidence of the petitioner-defendant on 25-7-1980. The petitioner-defendant closed his evidence on 10-9-1980 and the respondent-plaintiff sought for permission to adduce rebuttal evidence. This was opposed by the petitioner-defendant on the ground that the respondent-plaintiff had closed her side and before closing her side, she had not reserved her right to produce rebuttal evidence. The Court below has over-ruled this objection and has allowed the respondent-plaintiff to produce rebuttal evidence.

(2.) It was contended by Sri H.G. Hande, learned Counsel for the pettioner, that the respondent-plaintiff did not actually produce oral evidence on Issue No.1 therefore, she was not the party beginning ; hence, she had no right to produce rebuttal evidence. It was also contended that even otherwise if it were to be held that a submission made on her behalf that she had no oral evidence to produce on Issue No.1, therefore, she closed her side amounted to begin her side of the evidence, the right to produce rebuttal evidence was not reserved before submitting to the Court that there was no evidence on Issue No.1 nor there was any order passed by the Court on the memo dt. 7-7-1980 reserving right to produce rebuttal evidence. Hence, it was contended that the court below was not right in permitting the respondent-plaintiff to produce rebuttal evidence on Issue Nos. 2 and 3.

(3.) The aforesaid contentions of Sri Hande, learned Counsel for the petitioner, cannot be accepted. It was the respondent-plaintiff who had the right to begin the case to produce her evidence in support of Issue No.1 which she was required to prove. Accordingly, on 7-7-1980 when the suit was posted for recording evidence of the respondent-plaintiff, it was submitted that there was no evidence to be adduced on issue No.1, therefore, her side be treated as closed. Even before the petitioner-defendant started adducing evidence, a memo dated 7-7-1980 came to be filed on 8-7-1980 to reserve her right to produce rebuttal evidence on Issue Nos. 2 and 3. Thus, it was the respondent-plaintiff who had the right to begin. The party having the right to begin as per R. 2 of Or. 18 of the C.P.Code on the date fixed for hearing of the suit, is required to state his case and to produce his evidence. The party having the right to begin the case will have a right to reply also. It is in the exercise of this right only the plaintiff-respondent opened the case and stated that she had no oral evidence to adduce on Issue No.1. This in fact and in law was nothing but beginning of the case by her and as such, she had the right to produce rebuttal evidence on Issue Nos. 2 and 3. Rr. 1, 2 and 3 of Or. 18 of the C. P. Code, are to be read together and they cannot be read in isolation. There is no stage prescribed by Rule 3 of Order 18 of the Code of Civil Procedure for the party beginning to reserve its right to produce rebuttal evidence. If the party applies to reserve the right to lead rebuttal evidence immediately closing its side and before the beginning of the evidence by the other side, it would have complied with the requirements of Rule 3 of Order 18 of the C.P. Code and it would be for the Court to pass an order on the application or the memo filed by the party to reserve the right to produce rebuttal evidence. If the Court failed to pass an order and proceeded to record the evidence of the other side on the otther issues, in such a situation, tha right of the party to produce rebuttal evidence was not taken away inasmuch as the omission was on the part of the Court to pass an order and not party. In such a situation it was a ways open for the on the part of the party. In such a situation, it was always open for the Court to permit the party to produce rebuttal evidence as it had already sought for reserving the right to produce rebuttal evidence long prior to the production of evidence by the other side. Therefore, the lower Court was justified in permitting the respondent-plaintiff to produce rebuttal evidence. Accordingly, the contentions raised by the learned Counsel for the petitioner must fail.