SYED AFZAL Vs. SYED HAMZA

JUDGEMENT

(1.) The second plaintiff in O.S.No. 123 of 1 1997, on the file of the Court of the II Additional Chief Judge, City Civil Court, Hyderabad, filed this Revision aggrieved by the rejection of his application to reopen the evidence of the plaintiffs.

(2.) The brief facts of the case are as follows: O.S.No. 123 of 1997 has been initially filed by the 1st respondent herein for administration of the estate of his late father 'Syed Aziz'. The revision petitioner was originally arrayed as defendant No. 8 in the suit. Later by order dated 22-9-1998 in I.A.No. 1192 of 1998 he was transposed as 2nd plaintiff. After the issues were settled, the revision petitioner-Plaintiff No. 2 was examined on 25-1-2000 as P.W. 1. Another witness was examined as P.W. 2, and thereafter, evidence of the plaintiffs was closed on 28-3-2000. Evidence on behalf of the defendants was commenced on 3-8-2000 and cross-examination of D.W. 1 was completed on 17-8-2000. At that stage, the revision petitioner, who is the second plaintiff in the suit, filed LA. (SR) No. 5007/2000 seeking to reopen the evidence of the plaintiffs. In the affidavit filed in support of the said petition he has stated that during the course of his evidence, he filed a memo dated 7-2-2000 reserving his right to lead rebuttal evidence if the need arises and since in the cross-examination of D.W. 1 it has come out that the estate of late Syed Aziz remained in tact and is liable to be partitioned and since D.W. 1 was evasive in the cross-examination with regard to certain details, it is necessary to reopen his evidence which was closed on 28-3-2000. He also stated that certain crucial documents relating to his Income tax returns were acquired by him at a later date and it is necessary to bring them on record as evidence for proper adjudication of the suit. Accordingly, he sought permission of the Court to reopen his evidence.

(3.) The Court below by order dated 4-9-2000 rejected the said application at SR stage itself holding that it is only an attempt to cover up the laches found in the evidence of the plaintiffs. The Court below held that the memo filed by the plaintiff No. 2 on 7-2-2000 is not sufficient to reserve the right to adduce rebuttal evidence under Order 18 Rule 3 of CPC. The Court below also observed that a petition under Order 18 Rule 3 of CPC has to be filed before the commencement of the evidence on the side of the plaintiffs specifying the issues on which the burden of proof lies on the defendant and since in the present case the burden of proof on all issues lies only on the plaintiffs, he is not entitled to reserve his right to adduce rebuttal evidence under Order 18, Rule 3 of CPC. Thus the Court below concluded that the plaintiff No. 2- Revision Petitioner herein is not entitled to seek reopening of his evidence and accordingly dismissed the application. Aggrieved by the said order the plaintiff No. 2 has come up with the present Civil Revision Petition.