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Madhya Pradesh High Court · body

2011 DIGILAW 829 (MP)

Kailash S/O Madholal v. Gokul Prasad

2011-07-27

N.K.MODY

body2011
JUDGMENT ( 1. ) BEING aggrieved by the order dated 14-2-2011 passed by Civil Judge, Class-I, Shajapur in Civil Suit No. 53-A/2010 whereby, the application filed by the respondents No. 1 to 3 under Order 18, Rule 3, Civil Procedure Code was allowed, present petition has been filed. ( 2. ) SHORT facts of the case are that respondents No. 1 to 3 filed a suit for declaration and permanent injunction alleging that respondents No. 1 to 3 are the owner of the suit property. The suit was contested by the petitioners wherein, plaint allegations were denied. It was denied that respondents No. 1 to 3 are owner of the suit property. It was alleged that petitioners are the owner and in occupation of the suit property on the basis of hostile title. On the basis of the pleadings of the parties learned Trial Court framed the issues and also recorded the evidence. After adducing the evidence by the respondents the evidence of the petitioners begun. Before closer of the evidence of the petitioners and application filed by the respondents No. 1 to 3 under Order 18, Rule 3, Civil Procedure Code wherein, it was prayed that right to adduce the evidence in rebuttal be reversed. The application was allowed, against which present petition has been filed. ( 3. ) SHRI Sudhanshu Vyas, learned Counsel for the petitioners argued at length and submits that the impugned order passed by learned Court below is illegal, incorrect and deserves to be set aside. ( 4. ) LEARNED Counsel submits that since the evidence of the respondents No. 1 to 3 was completed and evidence of the petitioners also begun, therefore, at that juncture, respondents No. 1 to 3 cannot be permitted to reverse their right to adduce evidence in rebuttal. It is submitted that petition filed by the petitioners be allowed and the impugned order passed by learned Court below be set aside. Learned Counsel for the respondents No. 1 to 3 submits that no illegality has been committed by learned Court below in passing the impugned order as right of the respondents No. 1 to 3 have been reserved relating to counter claim filed by the petitioners. It is submitted that petition filed by the petitioners be dismissed. Learned Counsel for the respondents No. 1 to 3 submits that no illegality has been committed by learned Court below in passing the impugned order as right of the respondents No. 1 to 3 have been reserved relating to counter claim filed by the petitioners. It is submitted that petition filed by the petitioners be dismissed. In the matter of Gajadhar Singh vs. Gulab Bai and others, 2011 (1) MPWN 52 this Court has held that petitioner who failed to adduce in support of his claim cannot be permitted to reserve the right of rebuttal thereafter. ( 5. ) FROM perusal of the record, it is evident that the suit of respondents No. 1 to 3 is to the effect that respondents No. 1 to 3 are the owner of the suit property. This fact has been denied by the petitioners and petitioners are also claiming right of the ownership in the suit property. In the counter-claim right from beginning the respondents No. 1 to 3 are knowing the case and also knowing that what issues are required to be proved by respondents No. 1 to 3. In such circumstances, the application filed by the respondents No. 1 to 3 after completion of their evidence and also after beginning of evidence of petitioners cannot be allowed. It is true that in the present case petitioners have filed the counter-claim, however, in the counter-claim while deciding the title of respondents No. 1 to 3 petitioners are claiming their rights of ownership, which makes no difference. ( 6. ) IN view of this, petition filed by the petitioners is allowed and the impugned order passed by learned Court below is set aside. The application filed by the respondents No. 1 to 3 also stands dismissed. No order as to costs. Petition allowed.