I NOOKALAMMA Vs. I SIMHACHALAM

JUDGEMENT

(1.) THIS Civil Revision petition give's rise to an interesting question of law relating to the interpretation of the scope and application of the provisions of Order 18, Rule 3 C.P C. The plaintiff petitioner filed O S. No - 12 of 65 on the file of the Court of the Subordinate Judge, Visakhapatnam, for declaration of her title and for possession of the suit properties, which is resisted by the sole defendant on leveral grounds. The trial Court has framed several issurs. The burden is on the plaintiff with regard to all the issues except issues Nos 8 and 9 with regard to which the burden is on the defendant. After the completion of the examination of the plaintiff's witnesses, a memo by her counsel reserving her right to adducerebuttal evidence fur the evidence that will be adduced by the defendant on issues Nos. 8 and 9, was filed on 24-11 -66. The defendant resisted the claim of the plaintiff to reserve her right to adduc rebuttal evidence at that stage. as being belated, as she should have, according to him, made that claim before she began to let in evidence in the beginning. The lower Court, upholding the objection raised by defendant, rejected plaintiff's memo as unacceptable. Aggrieved by'that order, plaintiff preferred this revision petition. Mr, A.S Prakasam, for the plaintiff, contends that the provisions of Order 18, Rule 3 C.P.C. do not bar the plaintiff's claim to reseive her right to adduce evidence by way of rebuttal before the commencement of the evidence for the defendant and after the completion of evidence for the plaintiff. Mr. Mangu Venkata Rao, for the respondent, contended contra. The point for determination is whether plaintiff is entitled to reserve her right to adduce evidence by way of rebuttal after the completion of evidence on her side and before the commencement of evidence for the defendant. For a proper appreciation of the point at issue, it is necessary and relevant at this stage to consider the provisions of Order, 18, Rule 3 C.P.C., which read thus:-

(2.) THAT stage would come only after the evidence for the defendant is produced before the Court on the issue where the burden is admittedly on the defendant The option given to the party contemplated under Order 18, Rule 3 C. P. C. will have to be exercised only at or before the time when the other party that has got the right to lead evidence on issues 8 and 9 actually, begins, and not afterwards. Admittedly, the defendant has no right to adduce evidence on issues where the burden lies on him, before the completion of the evidence of the plaintiff's witnesses on the issues where the burden lies on the plaintiff; Hence, at that stage, the plaintiff can certainly claim the reservation contemplated under Order 18, Rule 3 C P.C. and re. quest the Court that that right would be exercised by the plaintiff after the completion of the evidence of the defendant's witnesses, and a memo, in fact, has been filed before the defendant, who has a right to lead evidence on those issues 8 and 9, has actually commenced. Hence, on a close and careful reading of the provisions of Order 18, Rule 3 C.P.C., the plaintiff must be held to be within her limits in filing the memo, after the close of her evidence and before the commencement of the defendant's evidence, exercising the option contemplated in Order 18, Rule 3 C P.C. I shall now consider the case law on the subject. In Motiehal Prabhubai v Unedchand Kasalchand a Divisicn Bench of the Saurasatra High Court, held that the option is to be exercised at the time the party (having the right to begin) begins and states his case and not at any earlier moment and that there is nothing in Rule 3 to show that the option is to be exercised before hand nor that a tegular application has to be made to the Court. In Nanhey Raja Saheb v. Kedar Nath and ethers Krishnan J.C. of Vindhya Pradesh Judicial Commissioner's Court held that the plaintiff was entitled to adduce evidence of rebuttal of the evidence adduced by the defence, before the othe party begins his evidence. In Kamachandra Singh v. Bibi Asghari Begum and another the plaintiff filed a Suit for specific performance against the Ist defendant, the vendor, and the 2nd defendant, the subsequent vendee, who claims to have purchased the property from the la defendant, without notice of the prior agreement in favour of the plaintiff. The plaintiff has let in evidence on his side in support of his claim for specific performance of the suit contract and the 1st defendant also had completed her evidence with regard to the suit agreement. At that stage, the plaintiff iited an application under Order, 18, Rule 3 C.P.C. reserving his right to adduce evidence by way of rebuttal to the evidence that would be produced by the 2nd defendant on issues relating to his subsequent purchase from the 1st defendant bona fide and without notice of the prior agreement in favour of the plaintiff .In those circumstances, it was observed by Raj Kishore Prasad, J. at page 226 thus--