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1978 DIGILAW 463 (MP)

Chitaman Rao v. Laxminarain

1978-05-17

A.R.NAVKAR

body1978
Short Note : 1. It seems, on 12-1-1977, while the evidence of defendants was going on plaintiffs submitted an application, saying that they wanted to examine one Virendra Singh who is a tenant of the plaintiffs and he is a very important witness. Due to inadvertence, he was not examined and, therefore they should be allowed to examine in rebuttal. No order was passed on this application, because the plaintiffs submitted to the trial Court that presently this application may be kept pending and if need be, they will press this application. Now when the evidence of the defendants is over, the plaintiffs pressed the application and asked that they be allowed to examine virendra Singh in rebuttal. This application was dismissed by the trial Court, relying on the judgment of this Court in Laxminarain v. Baburam ( 1977 JLJ 493 ). Aggrieved by this order, the plaintiffs have filed this revision petition. Held: After this judgment in Laxminarain v. Baburam (supra), there is a Full Bench judgment of this Court on this point in Civil Revision No. 185 of 1974 (Tikamdas v. Chandraswaroop), decided on 6-2-1978, and the learned counsel for the applicants, Shri B.G. Apte, submitted before me at the time of admission of this revision that certain observations are in his favour in the aforesaid Full Bench judgment of this Court. 2. After hearing both the counsel, I am of the opinion that the revision has no force and that it should be dismissed. 'It is clear from the facts narrated about that the plaintiffs never reserved their right of rebuttal before starting their evidence. If they have failed to do so, then subsequently, they cannot ask the Court to allow them to lead evidence in rebuttal. The Full Bench judgment in Tikamdas v. Chandraswaroop (supra) has given its opinion and the relevant portion which is applicable to the present case is in paragraphs Nos. 3 and 4 thereof. 3. It is clear that the plaintiffs never gave an intimation of their option before they started their evidence and, therefore, now they cannot ask that they be allowed to adduce a witness (Virendra Singh) in rebuttal. Therefore, the first submission made by the learned counsel cannot be accepted. 4. Secondly, he has drawn my attention to the amendment made to Order 18 CPC. Therefore, the first submission made by the learned counsel cannot be accepted. 4. Secondly, he has drawn my attention to the amendment made to Order 18 CPC. The right to reserve their rebuttal evidence accrued to them when the plaintiffs started their evidence and that was much before the amendment of Order 18 CPC. The amendment came into force by Act No.104 of 1976 on 1-2-1977. Therefore, the subsequent amendment of Order 18 CPC will not help the plaintiffs case because which right they had, was lost already. 1977 JLJ 493 and C.R. No.185 of 1974 decided on 6-2-1978 relied on. Revision dismissed.