Research › Search › Judgment

Karnataka High Court · body

2014 DIGILAW 396 (KAR)

Rajesh S. M. v. U. J. Mahabala

2014-03-24

N.KUMAR

body2014
ORDER : N. Kumar, J. 1. This Writ Petition is filed by the plaintiffs challenging the order passed by the trial Court declining to permit them to lead rebuttal evidence in the case. 2. The plaintiffs have filed the suit for partition and separate possession of 1/6th share each in the plaint schedule properties. Defendants have filed their written statement contesting the claim. They have set up a Will dated 30.5.1994 executed by Smt. Girijamma, the mother of the plaintiffs and that the properties have to be distributed in terms of the Will. On the aforesaid pleadings, the trial Court has framed the following issues:-- 1. Whether the plaintiffs prove that the registered Gift Deed dated 23-02-2005, registered Sale Deed dated 05-11-2007 and 25-02-2008 are invalid and not binding on them? 2. Whether the plaintiffs prove that they are entitled to claim share in the suit schedule properties? 3. Whether the defendants prove that Late Girijamma has executed a Will dated 30-05-1994 and the same is with in the knowledge of the plaintiffs? 4. Whether the 3rd defendant proves that he is a bona fide purchaser of the suit schedule properties for value after noticing the valid title of is vendors? 5. Whether the 3rd defendant proves that the suit is barred by time? 6. Whether plaintiffs are entitled for the relief? 7. What decree or order? 3. On behalf of the plaintiffs, two witnesses have been examined. After the closure of the plaintiffs' side, before defendants commenced their evidence, the plaintiffs filed an application under Order XVIII Rule 3 of CPC requesting the Court to permit them to lead rebuttal evidence after the defendants closed their side. 4. The said application was opposed on the ground that the plaintiffs have let in positive evidence by producing a document in their support to dispute the signatures on the Will dated 30.5.1994 and in the cross-examination they have given positive answers and admitted several documents confronted to them touching upon those issues in which the burden is cast upon the defendants to prove the Will. In the absence of pleadings on the side of the plaintiffs they cannot be allowed to lead evidence beyond their pleadings. The plaintiffs have already led evidence on all the issues in which the burden of proving the same is on the defendants. Therefore, permission cannot be granted to the plaintiffs to lead rebuttal evidence. 5. In the absence of pleadings on the side of the plaintiffs they cannot be allowed to lead evidence beyond their pleadings. The plaintiffs have already led evidence on all the issues in which the burden of proving the same is on the defendants. Therefore, permission cannot be granted to the plaintiffs to lead rebuttal evidence. 5. The trial Court accepting the contention of the defendants by the impugned order held that, the plaintiffs have produced Ex. P1-registered sale deed executed by Sarojamma in favour of her mother Girijamma on 6.9.1984 and got marked Girijamma's signature as Ex. P1(a). It would amply demonstrate that they have led evidence touching upon all the issues including those in respect of which the burden is cast on the defendants. Therefore, the plaintiffs have forfeited their right to adduce rebuttal evidence. Aggrieved by the said order, the petitioners have filed this Writ Petition. 6. Learned counsel for the plaintiffs-petitioners submits that, the evidence produced by the plaintiffs is only to the extent that the signature on the Will is not that of Girijamma. They have not adduced any evidence in so far as due execution of the Will is concerned. They sought for leading permission to rebuttal evidence after the defendants choose to lead evidence on the said issue. Therefore, the observation of the trial Court is not correct and the said order requires to be interfered with. 7. Per contra, the learned senior counsel appearing for the defendants contended that, in the examination-in-chief they have referred to the Will. They have also produced sale deed to show that the signature of the testatrix on the sale deed is not the same as that on the Will. Therefore, it is too late for them to contend that they have not adduced evidence. At any rate, piece meal evidence is not permissible in law. Therefore, he submits no case for interference is made out. 8. Order XVIII Rule 3 of the Code reads as under:-- 3. Therefore, it is too late for them to contend that they have not adduced evidence. At any rate, piece meal evidence is not permissible in law. Therefore, he submits no case for interference is made out. 8. Order XVIII Rule 3 of the Code reads as under:-- 3. Evidence where several issues.- Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case. 9. A reading of the aforesaid provision makes it clear that, when there are several issues the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party. Therefore, the party adducing evidence has been given the option to lead evidence on issues, the burden of proving which is on the opposite side or reserve the right to lead evidence after the party on whom the burden of proof lies adduces evidence. Therefore, this option has to be exercised before the other party commences his evidence, normally before the party closes his side. 10. Reliance is placed on the judgment of this Court in the case of S. Chandra Keerti v. Abdul Gaffar and Others [AIR 1971 MYSORE 17] where it has been held as under:-- It is clear from these provisions that in a case where the burden of proving some of the issues lies on one party, then, in such a case, it is open to the party beginning, if he so chooses to reserve his evidence by way of rebuttal to the evidence to be produced by the other party. In the present case, however, the defendant was conceded to have the right to begin, as contemplated under Rule 1 of Order 18 of the Code of Civil Procedure. In the present case, however, the defendant was conceded to have the right to begin, as contemplated under Rule 1 of Order 18 of the Code of Civil Procedure. It is for him, to exercise his option to adduce the rebuttal evidence on issue No. 6. The question is when he could exercise his option. Sri Chandrasekhar, the learned counsel for the respondent submits that he should have done so either before he began, or closed his case. 3. It is true that the law does not prescribe a stage at which a party should apprise the Court of his exercising the option under Rule 3 of Order 18. But it is reasonable that this should be done before he begins to adduce his evidence, and in any case before the other party begins his evidence, so that it might be borne in mind that the party beginning has not closed his evidence. This view of mine is also supported by the ratio of the decision reported in AIR 1969 Andh Pra 82 (I. Nookalamma v. I. Simhachalam.) In the instant case, it is found by the trial Court that the defendant has not exercised his option to produce rebuttal evidence at any one of the stages above mentioned. I am, therefore, of the opinion that the petitioner cannot avail himself of the provisions of Order 18, Rule 3of the Code of Civil Procedure. (underlining by me) 11. The Punjab and Haryana High Court in the case of Chakkar Pani v. Onkar Nath [1996 (2) Civil Court Cases 715(P&H)] has held as under: 8. I also find no merit in the plea of the appellant that the plaintiff ought to have been granted an opportunity to adduce evidence in rebuttal since the onus of issue No. 4 was upon the defendant. Order 18 deals with hearing of the suit and examination of witnesses. Order 18 R. 1 deals with right to begin i.e. the plaintiff has right to begin unless the defendant admits the facts alleged by the plaintiff. Order 18 Rule 2 deals with statement and production of evidence i.e. on the date fixed for hearing of the suit, a party having the right to begin is to state his case and to produce his evidence in support of the issues which he is bound to produce. Order 18 Rule 2 deals with statement and production of evidence i.e. on the date fixed for hearing of the suit, a party having the right to begin is to state his case and to produce his evidence in support of the issues which he is bound to produce. It is thereafter that the other party is to state his case and produce his evidence. Under Order 18 Rule 3, a case where there are several issues and the burden of proving some of which lies on the other party, the party beginning on his option can produce his evidence on these issues or reserve it by way of evidence produced by the other party and in the later case the party beginning can produce evidence on those issues after the other party has adduced all his evidence. In the instant case, the plaintiff while adducing evidence in affirmative; for reasons best known to him, choose to adduce evidence which strictly can be termed to be 'rebuttal evidence' to issue No. 4. Thus instead of reserving the rebuttal evidence while leading the affirmative evidence as well i.e. he exercised his option under Order 18 Rule 3 of the Code of Civil Procedure thus forfeiting his right to lead evidence after the conclusion of evidence by the other side. Keeping in view the provisions of Order 18 Rule 3, Civil Procedure Code, the trial Court declined the plaintiffs prayer for adducing of evidence in rebuttal which conclusion has also been affirmed by the lower Appellate Court. In this regard too, I find no ground to reverse this finding of the Courts below. Finding no merit in the appeal the same is dismissed. No order as to costs. 12. From the aforesaid judgments it is clear that, the party has been given the option either to adduce evidence on those issues in respect of which the burden of proof is on the opposite party or reserve the liberty to lead rebuttal evidence after the other party discharges that burden. The provision does not specify the stage at which this request is to be made. Interpreting the aforesaid provision, the Courts have held that the option given to the party who commences the evidence to lead rebuttal evidence should be exercised before he begins to adduce his evidence or closes his side or at any rate before the opposite side commences his evidence. Interpreting the aforesaid provision, the Courts have held that the option given to the party who commences the evidence to lead rebuttal evidence should be exercised before he begins to adduce his evidence or closes his side or at any rate before the opposite side commences his evidence. Once that stage is crossed, he forfeits his right to lead rebuttal evidence. Yet another circumstance under which the right to lead rebuttal evidence is lost is when the party adduces positive evidence on those issues in respect of which the burden of proving is on the opposite party. 13. The whole object behind this is, when several issues are framed casting the burden on both the parties, normally evidence is to be adduced by the party on whom the burden lies. The opposite party, by cross-examination, may disprove the case of the party leading evidence. It is only when the case pleaded is proved the opposite party may lead evidence to disprove the case of the party leading evidence. It is only when that burden is discharged the opposite party would be in a position to adduce evidence to disprove the case of the opposite party. Therefore, in order to properly appreciate this provision of law, one has to bear in mind, the definition of "proved", "not proved", "disproved" as contained in Section 3 of the Evidence Act. This rebuttal evidence is normally required to disprove the case of the opposite party. 14. It is the propounder of the Will who has to establish the Will. Proof of a Will means due execution of the Will. In order to prove due execution of the Will, the propounder is also required to establish that the testator at the time of executing the Will was in a sound state of mind. The suspicious circumstances surrounding the execution of the Will has to be explained. If the defence is no such Will is executed, it means that the very execution of the Will is denied. 15. In the instant case, the defendants have set up a Will in the written statement. The defendants have to prove the Will. The plaintiffs, in the course of their evidence, have tried to deny the same. To demonstrate that the Will does not bear the signature of Girijamma, they have produced Ex. 15. In the instant case, the defendants have set up a Will in the written statement. The defendants have to prove the Will. The plaintiffs, in the course of their evidence, have tried to deny the same. To demonstrate that the Will does not bear the signature of Girijamma, they have produced Ex. P1-registered sale deed executed by Sarojamma in favour of Smt. Girijamma on 6.9.1984 and got marked Girijamma's signature as Ex. P1(a). The plaintiffs have not produced any evidence regarding due execution of the Will, i.e. the suspicious circumstances surrounding the Will or the mental state of the testator. It is for the defendants to prove all these facts having propounded the Will. It is only then the plaintiffs have the right to lead rebuttal evidence. The plaintiffs have filed the application before commencement of the evidence of the defendants. The entire burden of proving the Will is on the defendants who have propounded the Will. They are yet to lead their evidence. They are put on notice by the plaintiffs that they are not only denying the due execution of the Will but they are also denying the signature of the testatrix by producing the registered sale deed which bears the signature of the testatrix. Therefore, the Court below should have properly appreciated this aspect and allowed the application. Hence, the plaintiffs are permitted to lead rebuttal evidence in respect of issue No. 3. 16. Therefore, I pass the following order:-- (1) Writ Petition is allowed. (2) The impugned order passed on I.A. 8 in O.S. 78/09 passed by the 1st Addl. Sr. Civil Judge, Shimoga, is hereby set aside. (3) I.A. No. 8 U/o XVIII rule 3 CPC is allowed permitting the plaintiffs to lead rebuttal evidence only after the defendants lead evidence on due execution of the Will.