VINAYAK SHASTRY Vs. DHONDU SHASTRY

JUDGEMENT

(1.) These two Civil Revision Petitions can be disposed of by a common Order since they arise out of two interlocutory applications filed in the same suit. The petitioners are the defendants in the suit. The respondent herein who is no other than the father of the first petitioner filed the suit for declaration of title and for recovery of possession of the suit properties after ejecting the defendants therefrom. The suit properties admittedly belonged to Durga Narayana, the deceased brother of the respondent-plaintiff. The respondent filed the suit claiming the properties as the legal heir of Durga Narayana. The petitioners are resisting the suit relying upon two Wills alleged to have been executed by Durga Narayana, during his life time. As the burden of proving the alleged Wills was on the defendants, they commenced their evidence in the first instance. After examining six witnesses on their side, their evidence was closed on 24-2-99. Thereafter, the evidence on the side of the plaintiff was commenced on 23-6-99 and after examining two witnesses on his side, the evidence on the plaintiff's side was closed on 25-11-99 and the suit is posted for arguments. After the closure of the evidence on their side and after the commencement of the examination of the first witness of the plaintiff, the defendants filed I.A. No.801/99 to receive certain documents which were filed along with the said application in evidence after condoning the delay in filing the same. The said application was ordered on 11-11-1999. On 16-12-1999 when the suit cameup for arguments, the defendants filed two interlocutory applications viz., I.A. No.976/99 under Order 18, Rule 17 CPC to recall D.W.I for further examination and I.A. No.977/99 under Order 13 Rule 2 CPC to receive and admit the documents filed along with the said application in the evidence. By the impugned orders, the lower Court dismissed both the said applications on the ground that the applications are belated and the defendants have no right to adduce any further evidence by way of rebuttal as they made no reservation in mat behalf as per Order 18 Rule 3 CPC

(2.) The learned Counsel appearing for the petitioners-defendants sought to assail the impugned orders by contending that mere delay in filing the applications is not a valid ground for shutting-out valuable evidence and that under Order 18 Rule 17 CPC, the Court has ample power to permit the examination of any witness at any time even in the absence of any reservation made under Order 18 Rule 3 CPC.

(3.) On the other hand, the learned Counsel appearing for the respondent has contended that in the absence of any express reservation made by the defendants reserving their right to adduce rebuttal evidence as envisaged under Order 18 Rule 3 CPC, the defendants have no right at all to adduce any rebuttal evidence at this belated stage and that the lower Court has properly exercised its discretion in dismissing the applications and there are absolutely no valid grounds whatsoever to interfere with the same in revision.