BIHARI LAL Vs. PURAN

JUDGEMENT

(1.) In this revision partition is the plaintiff whereas respondent is the defendant is the defendant and they will be referred to as such in this judgment. The plaintiff is aggrieved by order dated 19.1.1999 passed by Sub Judge 1st Class (2), Nurpur, District Kangra, whereby the prayer of the plaintiff to adduce evidence in rebuttal was rejected on the ground that earliest he had neither appeared in the witness box to being his case nor exercised his option to lead evidence in rebuttal. According to the trial Court, in this background, there is no provision in law to permit the plaintiff to adduce evidence in rebuttal as he had only placed on record the documents Ext.P-1 to Ext.P-3 and had not either adduced any oral evidence or appeared himself as his witness.

(2.) After hearing learned counsel for the parties and going through the record, this Court finds that the impugned order cannot stand judicial scrutiny. Firstly, while producing documentary evidence Ext.P-3 learned counsel for the plaintiff had given the statement that evidence of the plaintiff was closed in affirmative which shows that the right adduce evidence in rebuttal on the issues, onus whereof is on the defendant, was reserved. Procedure for examination of the witnesses laid down under order 18, Civil Procedure Code. Rule 1ORDER18, Civil Procedure Code provides that the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin. Under Rule 2ORDER18, Civil Procedure Code the right to begin shall State his case and produce his evidence on the issues which he is bound to prove and thereafter the other party shall State his case and produce his evidence. Under sub Rule (4) of Order 18, Civil Procedure Code it is specifically provided that notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage. This provision has been inserted by Act No. 104 of 1976 with effect from 1.2.1976.

(3.) In this case, we are directly concerned with Rule (3) of Order 18, Civil Procedure Code. It is :