KALYAN DASS Vs. KISHAN KARAN

JUDGEMENT

(1.) THIS revision application arises out of a suit for possession and mesne profits filed on November 16, 1967. Six issues were framed in the suit out of which issue No 3 was to the effect as to whether the defendant had purchased the disputed property by an oral sale dated January 24, 1944 and was in possession thereof in pursuance of the aforesaid sale. The trial court decided issue No 5 as a preliminary issue on June 1, 1970 and thereafter the plaintiff's evidence was examined, which was closed on 26-11-73 and subsequently the defendant's evidence was closed on 11-2-74. On the last mentioned date, the learned counsel for the plaintiff urged that as the burden of issue No 3 was on the defendant, the plaintiff should be allowed to lead evidence in rebuttal The defendant objected to the same on the ground that issue No. 3 was framed by way of rebuttal to issue No. 1, which was to the effect as to whether the defendant was in possession of the suit premises on the basis of a licence granted by the plaintiff on the year 1953. The trial court accepted the contention of the learned counsel for the defendant that issues No. 1 and 3 related to the same subject-matter and that the plantiff having not reserved any right of rebuttal, an opportunity of leading further evidence could not be given to him by way of rebuttal. The trial court after making the aforesaid observation, still went on to provide a further opportunity to the plaintiff to lead evidence in rebuttal "in the interest of justice". THIS order, passed by the trial court on February 11, 1974 has been challenged by the defendant in the present revision application.

(2.) THE argument of the learned counsel for the defendant-petitioner is that the plaintiff having failed to reserve his right of rebuttal, either at the time when he began his evidence or at the time when his evidence was closed, the trial court had no jurisdiction to allow the plaintiff any opportunity to adduce further evidence in rebuttal, merely on the ground of serving 'interest of justice' On the other hand, the argument of the learned counsel for the non-petitioner is that as the plaintiff did not lead any evidence in respect of issue No. 3 earlier he should be considered to have exercised the option, within the meaning of Order 18, Rule 3 C. P. C. , to reserve his evidence in respect of the said issue, the burden of which was placed on the other party. Learned counsel for the plaintiff also submitted that as Order 18 Rule 3 does not specify the manner in which the option is to be exercised for reserving the right of rebuttal nor it prescribes the stage at which such option is to be exercised and as such the court should look to the evidence led by the party beginning evidence, in order to come to the conclusion as to whether that party had exercised the option reserving the right of rebuttal or not.