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2009 DIGILAW 632 (ORI)

Prahallad Agarwalla v. Bijay Shankar Chandgotia

2009-08-17

SANJU PANDA

body2009
JUDGMENT S. PANDA, J. — In this writ application, challenge has been made to the order dated 17.4.2008 passed by the learned Civil Judge (Senior Division), Rairangpur in Civil Suit No.33 of 2005 allowing the application filed by the present opposite party-plaintiff under Order 18, Rule 3 of the Civil Procedure Code. 2. The opposite party-plaintiff filed the suit for evic¬tion of the petitioner-defendant on the basis of relationship that he was the land-lord and the defendant was the tenant. He also prayed for realisation of the arrear rent and damages. The present petitioner-defendant filed his written statement traversing the plaint allegation and also denied the relationship of land-lord and tenant between them and claimed that the suit property has been allotted to his mother-Panadevi. He constructed the suit house with the help of the plaintiff from time to time. Further, he stated that there was a Government land near the suit house where the plaintiff has constructed a room and requested the defendant to sign on the blank papers for the purpose of recording the same in the name of the defendant. The defendant put his signatures in two blank papers which were later on con¬verted into a manufactured forged agreement by the plaintiff. By that process, the plaintiff has added Ac.0.05 dec. of land to the actual land of Panadevi and suppressing the said fact the plain¬tiff has filed the plaint. The defendant has also filed a coun¬ter-claim praying for a declaration that the plaintiff was not the land-lord and the defendant is not his tenant. Further, the possession of the defendant over the disputed land and home is lawful and prayed for delivery of vacant possession of the room in which the son of the plaintiff is carrying his business. 3. The written statement filed by the defendant reveals that Sheobhagwan, Harigopal and Godavari are related to each other being the brothers and sister. Sheobhagwan died leaving behind him his four sons, namely, Ratan, Shyam, Bishnu and Bijay. Bijay is the plaintiff in the suit. Harigopal died leaving behind him his wife Panadevi and his adopted daughter Geetadebi (mother of the defendant), Godavari married at Dalmia Nagar in Bihar. After death of the husband of Godavari, Geetadebi used to come to her brother’s house at Rairangpur. Bijay is the plaintiff in the suit. Harigopal died leaving behind him his wife Panadevi and his adopted daughter Geetadebi (mother of the defendant), Godavari married at Dalmia Nagar in Bihar. After death of the husband of Godavari, Geetadebi used to come to her brother’s house at Rairangpur. Since Harigopal and Panadevi were issueless, they decided to adopt Geetadebi and in the presence of the local gentries and relatives, adoption ceremony was performed in the year 1995. From that date Geetadebi remained with her adoptive father and mother in their house. 4. From the above pleas, issues were framed by the trial Court on 31.8.2007. The dispute raised in the written statement filed by the defendant were involved in Issue Nos.4, 5 and 6. The plaintiff adduced oral as well documentary evidence and closed his evidence on 4.3.2008. He filed an application under Order 18, Rule 3 of the CPC on 5.3.2008 along with a memo stating therein that he has closed his case for the present subject to the result of the petition filed under Order 18, Rule-3, CPC. After the defendant adduced his evidence, the plaintiff was to adduce rebuttal evidence on the issues as the defendant has pleaded question of adoption, etc. In this regard, the defendant filed his objection stating therein that the plaintiff has adopted dilatory practice to harass the defendant by suppressing materi¬als before the Court and wants to mislead the Court. 5. Considering the prayer of the plaintiff and the objec¬tion filed by the defendant, the learned Civil Judge (Senior Division) has allowed the said application on the ground that there were several issues involved in the suit including issues both on fact and law. Therefore, the application under Order 18, Rule 3, CPC has been allowed and leave has been granted to the plaintiff to lead rebuttal evidence after closure of the evidence from the side of the defendant. There is no doubt that if a party has opted to reserve his right to produce evidence on the issues burden of proving which lies on the other party Order-18, Rule 3 of the CPC entitles him to give evidence by way of answer to the evidence produced by the other party after the latter has produced all his evidence. There is no doubt that if a party has opted to reserve his right to produce evidence on the issues burden of proving which lies on the other party Order-18, Rule 3 of the CPC entitles him to give evidence by way of answer to the evidence produced by the other party after the latter has produced all his evidence. It is also the settled position of law that Order 18, Rule 3, CPC does not prescribe any mode for exer¬cising the option and thus it does not require a regular applica¬tion to be filed while exercising the option. It has been further held that it would suffice if the party apprises the Court of his exercising option and that although the provision does not pre¬scribe any particular stage at which the option should be exer¬cised, it is only fair and reasonable that the same should be exercised before the party begins his evidence and in no case after evidence from the other side has begun. 6. In the present case, after closure of the evidence, the plaintiff has immediately filed an application for leave of the Court to adduce rebuttal evidence after the closure of the de¬fendant’s evidence. 7. Law is settled that a person, who has advanced the plea of adoption, has to prove the same. Therefore he has to adduce his evidence in respect of adoption. Thereafter, the plaintiff will adduce rebuttal evidence. Otherwise the plaintiff will have to be deprived of his right of defence without knowing what is the basis of the defendant’s plea of adoption. Therefore, the learned Civil Judge has rightly allowed the application of the plaintiff. 8. Therefore, this Court is not inclined to interfere with the order dated 17.4.2008 passed by the learned Civil Judge (Senior Division), Rairangpur in Civil Suit No.33 of 2005. Accordingly, the writ application is dismissed. Application dismissed.