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2007 DIGILAW 263 (JK)

Durga Dass v. Om Parkash

2007-11-28

J.P.SINGH

body2007
1. Durga Dass, appellant, had filed a suit seeking declaration that he is entitled to 1/4th share in the properties left by his father Dina Nath and a decree for permanent prohibitory injunction restraining his two brothers and Shanti Devi, the widow of Dass Ram, his predeceased brother, from withdrawing the amount of compensation assessed by the Revenue Authorities for acquisition of land held by late Sh. Dina Nath. 2. Aggrieved by the dismissal of his suit, the appellant has filed this Civil 1st Appeal questioning the decree and judgment, inter alia on the ground that findings of the trial Court on issue no.3, i.e. Whether the plaintiff is an adopted son of Kukan and is not entitled to inherit the property of Dina Nath? OPD, are unsustainable because the appellant was not provided any opportunity by the trial court to lead evidence in rebuttal to the evidence led by the defendants in this behalf. 3. I have heard learned counsel for the parties. Mr. V.R. Wazir, learned counsel for the appellant, submitted that he had moved a specific application seeking indulgence of the trial Court to provide him opportunity to lead evidence in rebuttal on issue no.3, which application according to the learned counsel has been erroneously refused thereby prejudicing the appellants case. 4. Mr. L.K. Sharma, learned counsel for the respondents, on the other hand, submitted that the trial Court had not committed any illegality in refusing appellants application, for the appellant, having omitted to reserve his right to lead evidence in rebuttal, could not, later, be permitted to lead evidence in rebuttal. 5. I have considered the submissions of learned counsel for the parties and gone through the judgments cited by learned counsel for the parties. 6. The first judgment which was cited at the Bar is reported as Kulbushan Kumar v. Jatinder Nath, 1981 KLJ, 466. 7. While dwelling on the issue regarding the interpretation of Order 18 Rule 3 of the Code of Civil Procedure, the then Lord Acting Chief Justice, held as follows:- "It will be noticed that this rule contemplates a case where there are several issues the burden of proving some of which has on one party and of some others on the other party. The rule provides that in such a case the party beginning shall have the option either to produce his evidence on all the issues or in respect of such issues only the burden whereof is on it and leave the rebuttal evidence in respect of the issues onus whereof is on the other party, to be produced only after such party has produced his evidence. There is nothing in this rule to suggest that the option should be exercised in a particular from or at any particular stage. All that is necessary is that the party beginning should not have produced any evidence by way of rebuttal before the commencement of the evidence by the other party. Accordingly where the question arises whether the party beginning should be allowed to produce any evidence by way of rebuttal after the completion of his evidence by the other party, all that the court has to be satisfied about, is whether or not the party beginning has adduced any evidence by way of rebuttal before the commencement of evidence by the other party. If the court finds that such rebuttal evidence has already been produced by the party beginning, then it should refuse permission to produce such evidence. On other hand, if it finds that no such rebuttal evidence has come on record, it should permit the party beginning to produce such evidence. In the case of Illapu (Supra) the Andhra Pradesh High Court has held that in order to entitle the party beginning should have made an express reservation before the commencement of his evidence by the other party. On this interpretation we are asked to read order 18 Rule 3 as if instead of words "reserve by way of answer to the evidence produced by the other party the Legislature had enacted the words "expressly reserve it by way of answer to the evidence adduced by the other party" in this rule. This is not permissible. Moreover, rules are intended to hold and not hinder the cause of justice. On this interpretation, many a litigants may not be able to produce rebuttal evidence on the technical ground that they have inadvertently omitted to intimate their option to the court before the commencement of the evidence by the other party. This is what the legislature could not have intended. On this interpretation, many a litigants may not be able to produce rebuttal evidence on the technical ground that they have inadvertently omitted to intimate their option to the court before the commencement of the evidence by the other party. This is what the legislature could not have intended. With all respects to the learned Judges, I am not, therefore, inclined to accept this interpretation. In the present case, the trial court has found that while adducing his evidence the plaintiff had not produced any rebuttal evidence in respect of the issues the burden whereof lay on the defendant. Applying the above test the court was justified in allowing the defendant to produce the rebuttal evidence even if he had not expressly reserved his right to produce such evidence at any previous stage of the trial." 8. The second judgment which was cited at the Bar is reported as Mohd. Amin and another v. Dalip Singh and another, 1985 KLJ 99. While commenting on the issue, in the light of law laid-down in Kulbushan Kumars case (supra), a learned Single Judge of this Court held as follows:- "While reading rule 3 thoughtfully it would appear that no stage for exercising the option to reserve the right of rebuttal evidence has been envisaged therein. Had the legislature intended such a strict type of reservation to be made by the party beginning it would have used the words "expressly reserve" rather than simple "reserve" in the said Rule. The very omission of this kind in the provision shows that a liberal interpretation is to be given to the same in respect of the stage of exercising such option. That apart even the common sense would not admit the rationality of a rules not giving an opportunity to a party of rebutting the evidence produced by his opponent. Order 18 Rule 3, is also based on the same reasoning of common sense in providing an opportunity to each party to produce evidence not only on the issues onus whereof is on it but also rebuttal evidence on the issues onus whereof is on the opposite party. Providing of such opportunity should not prejudice the opposite party is the core of Order 18 Rule 3. Providing of such opportunity should not prejudice the opposite party is the core of Order 18 Rule 3. In giving a reasonable meaning to Rule 3, its larger purpose cannot be lost sight of nor is it to be construed in isolation from the proceeding Rules 1 and 2. The said Rules provide for the right to begin in the order in which the parties are to state their case and produce evidence in support of the issues and the burden of proof whereof rests on them. When read along with those provisions it seems to be more than manifest that the real object of Rule 3 is to put the opposite party on its guard that the evidence it is going to lead would be challenged not only by the cross-examination of witnesses but also by positive evidence by way of rebuttal. Rule 3 seems intended to avoid and obviate the prejudice which may otherwise be caused to the opposite party by taking him by surprise. The close reading of Rule 3 shows that it does not prescribe any inflexible time limit for exercising the option of reserving the right of rebuttal. That being so the statute is to be construed with a certain modicum of flexibility. It seems to follow thus the stage for reserving the right to lead evidence in rebuttal should remain open to the time beyond which it might tend to cause prejudice to the other party. This would be the point of time before the commencement of the evidence by the opposite party." 9. Both the judgments cited at the Bar, propound liberal construction of the provisions of Order 18 Rule 3 of the Code of Civil Procedure and rightly so because while engaged in the process of delivering justice and adjudicating the rights of the parties to the lis, pure technical approach, which may have the effect of depriving a party to prove the existence of his or non-existence of any right of his adversary, in a pending litigation, may not be warranted. Rules of procedure including those prescribed in the Code of Civil Procedure, are meant to advance the cause of justice. These rules cannot be interpreted in any such manner which may thwart the course of justice, by depriving a party to produce such evidence in the case which may establish his projected right. 10. Rules of procedure including those prescribed in the Code of Civil Procedure, are meant to advance the cause of justice. These rules cannot be interpreted in any such manner which may thwart the course of justice, by depriving a party to produce such evidence in the case which may establish his projected right. 10. I, therefore, do not find any justification in trial courts refusing appellants request to lead evidence in rebuttal on issue No. 3, merely because the appellant had not reserved his right to lead evidence on issue No. 3 after he had led his evidence on other issues the onus of proof of which lay upon him. The trial court has failed to take into consideration that appellant, while leading his evidence on issue Nos. 1, 2, 4 & 5 had not led any evidence against issue No. 3. In view of the two judgments of this Court referred to hereinabove, a liberal view was required to be taken while considering his request to lead evidence in rebuttal. The trial court has viewed the request of the appellant from purely technical angle without taking into consideration the effect of refusing permission to him to lead evidence on a vital issue. Order passed by the trial court on 07.10.2000 on appellants application seeking permission of the Court to lead evidence in rebuttal on issue No. 3 cannot, therefore, be sustained. It is, accordingly, set aside. 11. Resultantly, finding of the trial court on issue No. 3, which has been recorded without affording opportunity to lead evidence to the appellant, cannot thus be sustained. Trial courts finding on the issue is accordingly set aside. 12. In view of the setting aside of trial Courts finding on issue no.3, a fresh finding is required to be had for deciding the appeal. 13. During the course of consideration of this appeal, learned counsel for the respondents had submitted that in case the appellant was permitted by the court to lead evidence in rebuttal, respondents should also be provided opportunity to lead further evidence in support of issue No. 3 because they had been under the impression that appellants omission to reserve his right to lead evidence in rebuttal, would not require any further evidence to be led on the issue. 14. 14. I would, accordingly, remit the case to learned 1st Additional District Judge, Jammu for recording its finding on issue no.3 after first permitting the respondents to lead any further evidence which they may like so to lead on issue No. 3 and thereafter to the appellant plaintiff to lead his evidence on the issue in rebuttal. 15. Keeping in view the pendency of the suit for over a period of nine years, the trial court is directed to take up the case every week so as to conclude the evidence of the parties on issue No. 3 within a period of four months. It shall, thereafter, hear the parties and return its finding on issue No. 3, to this Court by 31st of May, 2008. 16. Registrar Judicial shall send the records to the trial Court for recording evidence on issue no.3 and returning its finding thereon before 31st of May, 2008. The appeal shall thereafter be listed for further proceedings. Parties to appear before the trial court on 8th of December, 2007.