KAVIRAJ GANPAT LAL SINDHWANI Vs. OM PARKASH

JUDGEMENT

(1.) By this petition under Section 115 of the Cods of Civil Procedure the defendant in a suit out of which it has arisen assaits the order of the trial Court by which the trial Court over ruled the objection of the petitioner to any opportunity being given to the plaintiff/respondent No. 1 herein to produce evidence on issues 2 and 3 of which the onus was on the petitioner.

(2.) It is the admitted case of the parties that onus of issues 2 and 3 was on the petitioner/defendant but it appears that after producing his evidence, the palintiff/respondent No. 1, made an unqualified statement closing his evidence without reserving his right to give evidence in rebuttal on issues 2 and 3. However, in the application made by the plaintiff/respondent No. 1 on March 22, 1969. for summonig witnesses, the plaintiff had recorded that the plaintiff reserved his right of rebuttal, if any. and when the plaintiff sought to produce the evidence in rebuttal on the aforesaid issues, an objection was taken on behalf of the petitioner that in the absence of reservation by the plaintiff under Order 18, Rule 3 of the Code of Civil Procedure, the plaintiff was not entitled to give any such evidence. This objection was over ruled by the impugned order.

(3.) In the course of the Order, the trial Court has come to the conclusion that the reservation of the righ to produce evidence in rebuttal contained in the plaintiff's application dated March 22, 1969, was sufficient reservation in law within the meaning of the provisions of Order 18 Rule 3 of the Code of Civil Procedure to entitle the plaintiff to produce such evidence. The contention of the petitioner that inasmuch as, the plaintiff had produced some evidence touching the aforesaid issues, and was therefore, disentitled to lead any evidence in rebuttal was repelled on the ground that even if the plaintiff had produced some evidence on the issues of which the onus was on the other side, there was nothing to prevent the plaintiff to seek an opportunity to produce evidence in rebuttal if the plaintiff had made the necessary reservation according to law.