NANHEY RAJA SAHEB Vs. KEDAR NATH AND OTHERS

JUDGEMENT

(1.) IN this application in revision two questions have been raised. Firstly, whether the plaintiff was not entitled to examine a particular witness. Secondly, whether the plaintiff having exercised his option under O. 18 R. 3, he should not have been allowed to adduce evidence in rebuttal to the evidence of the defendants first party on issues of which they were burdened with proof.

(2.) POINT NO. 1: In Civil Revn. No. 26 of 1951, D/ - 29 -9 -1951 - 'Basantlal v. Arjundas Khandelwar reported in AIR 1952 V P. 4 this Court considered if the inclusion of exclusion of a single piece of evidence is a "case decided". Here the question is slightly more complicated but the principles are the same. The plaintiff's suit was based on a bond executed by the father of the defendants first party. The plaintiff gave a list of witnesses at proper stage praying that summons might be issued; he had also filed the bond. The list seems to be included among others the attesting witnesses but did not include the scribe whose name was noted on the bond itself. After other witnesses, the plaintiff brought the scribe to the Court and wanted to examine him. The Court refused permission because that witness had not been named at the proper stage. The plaintiff argued that he had given on the list only those witnesses on whom he wanted summons to issue; the scribe concerned, was a petition writer attending the Court every day and was not to be summoned. His mistake lay in not giving the names of 'all' the witnesses, and then mentioning that he wanted summons to issue on such and such and that he would himself bring the others. Be that as it may, the Court persisted in the refusal. It is unnecessary to consider the merit of the plaintiff's contention at this stage but I note that this is not a proper case for the exercise of re -visional jurisdiction. Though a piece of evidence has not been shut cut, all the evidence of the party has been excluded, nor as for that matter, a block or heading of the evidence adducible at that stage. This shutting out of a single piece of evidence on the ground of non -mention in the first list is not a "case decided". Whether or not this is going to prejudice the party, it is an exercise oi discretion in regard to the examination of a witness and not a jurisdictional fact.

(3.) POINT NO. 2 : The question is whether under the statutory provision in O. 18, R. 3, the lower Court should not have allowed the plaintiff to adduce rebuttal evidence on certain points introduced by the defence. Whether or not a particular piece of evidence is really evidence of rebuttal of a nature described in O. 18. R. 3 is a question within the Court's discretion; but whether any evidence of rebuttal should at all be allowed to be adduced is a jurisdictional fact. An order on that is a case decided and as such, amenable to the re -visional jurisdiction of the Court. After his evidence and before the defendants began their case, the plaintiff filed a petition alleging that he had adduced his evidence only on certain issues in regard to which the burden of proof lay on him. On the other issues for proving which the defence had to shoulder the burden he was reserving his evidence by way of answer. There was no rejoinder by the other party, nor is it alleged that this was a device. The law does not prescribe a stage at which a party should apprise the Court of its exercising the option under O. 18, R. 3. But, it is only reasonable that this should be done, if possible, before it begins; and in any case before the other party begins its evidence, so that it might clearly note that the first party has not really finished. In certain circumstances ft might become necessary to scrutinize the option to see if it is not a device to try to shift the burden of proof on the other party; or to bring in belated evidence, as it were, by the back door. In this case, the exercise of the option was not objected to and was not even described by the other party as a device. After it a defence witness was examined by defendants first party. Thereafter the plaintiff wanted to call evidence of rebuttal; the District Judge decided that the single defence witness was not in any real sense a witness at all and had not brought any material which can be called evidence in support of the issues which the defendant had to prove.