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2009 DIGILAW 361 (AP)

Bode Prasad v. Karlapudi Venkateswara Rao

2009-06-08

L.NARASIMHA REDDY

body2009
ORDER The respondents filed O.S.No.484 of 1995 in the Court of Principal Senior Civil Judge, Vijayawada, against the petitioners and respondents 6 and 7, for the relief of partition and separate possession of the suit schedule properties. The petitioners figured as defendants 2 and 3. They opposed the suit, on the strength of a Will, said to have been executed in their favour. The trial of the suit commenced, and the evidence on behalf of the respondents 1 to 5 was almost over. Before closure of their evidence, the respondents filed I.A.No.1491 of 2007, under Order 18, Rule 3 C.P.C., with a prayer to give them an opportunity to adduce rebuttal evidence, after completion of the evidence of the petitioners herein, and other defendants. The application was opposed by the petitioners. Through its order dated 29-09-2008, the trial Court allowed the I.A. The same is challenged in this C.R.P. 2. Sri P.R. Prasad, learned counsel for the petitioners, submits that, in case the respondents 1 to 5 intended to lead any rebuttal evidence, they ought to have filed application before commencement of their evidence, and it is only when such a permission is granted, that they can adduce rebuttal evidence. He contends that an application filed at the fag end of the evidence of the plaintiffs, for such a purpose, is not tenable in law. 3. Sri Y. Nagaiah and Sri P. Ramabrahmam, learned counsel for the respondents, on the other hand, submit that the petitioners, who have relied upon a Will, have to prove the same to the satisfaction of the Court, and it is only after their evidence, that the respondents 1 to 5 would be in a position to formulate their evidence. They place reliance upon the judgment of this Court in Or. Syed Atzal v. Syed Hamia (died) per L.Rs 2002 (5) ALT 175 and submit that there is no infirmity in the application filed by the respondents 2 to 5. 4. In a suit for partition, filed by the respondents 1 to 5, the petitioners filed a written-statement, placing reliance upon a Will. Naturally, it is for them, to prove the Will. In case the Will is proved, the relief of partition becomes, a bit doubtful. 5. The respondents 1 to 5 cannot be expected to lead evidence in relation to the Will, which is propounded by the petitioners. Naturally, it is for them, to prove the Will. In case the Will is proved, the relief of partition becomes, a bit doubtful. 5. The respondents 1 to 5 cannot be expected to lead evidence in relation to the Will, which is propounded by the petitioners. They cannot anticipate, the type of evidence, which the petitioners may adduce, and take a definite stand during the course of their evidence. It is only after the petitioners lead oral and documentary evidence, in relation to the Will, that the respondents 1 to 5 would be in a position to adduce further evidence. Therefore, the entitlement of the respondents, to adduce rebuttal evidence, cannot at all be doubted. 6. A serious dispute is raised, as to the stage at which, the application was filed. Rule 3 of Order 18 C.P.C., confers the right to a party, to adduce rebuttal evidence. Such evidence can be adduced, only when permitted by the Court. The provision is silent as to the stage at which, the application has to be filed. This much however can be said that, it should be filed before other side commences its evidence. In Or. Syed Atzal v. Syed Hamia (died) per L.Rs (supra), this Court held that, an application can be filed even at the fag end of the recording of evidence of the party, which intends to adduce rebuttal evidence. 7. Viewed from any angle, there are no merits in the C.R.P. The C.R.P. is accordingly dismissed. There shall be no order as to costs.