BODA PRASAD Vs. KARLAPUDI VENKATESHWARA RAO

JUDGEMENT

(1.) THE respondents filed OS no. 484 of 1995 in the Court of Principal senior Civil Judge, Vijayawada, against the petitioners and respondents 6 and 7, for the relief of partition and separate possession of the suit schedule properties. The petitioners figured as defendants 2 and 3. They opposed the suit, on the strength of a Will, said to have been executed in their favour. The trial of the suit commenced, and the evidence on behalf of the respondents 1 to 5 was almost over. Before closure of their evidence, the respondents filed IA no. 1491 of 2007, under Order 18, Rule 3 cpc, with a prayer to give them an opportunity to adduce rebuttal evidence, after completion of the evidence of the petitioners herein, and other defendants. The application was opposed by the petitioners. Through its order dated 29. 9. 2008, the trial Court allowed the IA. The same is challenged in this CRP.

(2.) SRI P. R. Prasad, learned Counsel for the petitioners, submits that, in case the respondents 1 to 5 intended to lead any rebuttal evidence, they ought to have filed application before commencement of their evidence, and it is only when such a permission is granted, that they can adduce rebuttal evidence. He contends that an application filed at the fag end of the evidence of the plaintiffs, for such a purpose, is not tenable in law.

(3.) SRI Y. Nagaiah and P. Ramabrahmam, learned Counsel for the respondents, on the other hand, submit that the petitioners, who have relied upon a Will, have to prove the same to the satisfaction of the Court, and it is only after their evidence, that the respondents 1 to 5 would be in a position to formulate their evidence. They place reliance upon the judgment of this Court in dr. Syed Afzal v. Syed Hamia (died) per l. Rs. , 2002 (5) ALT 175, and submit that there is no infirmity in the application filed by the respondents 2 to 5.