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2014 DIGILAW 938 (MP)

Mahesh v. Harisingh

2014-08-01

PRAKASH SHRIVASTAVA

body2014
JUDGMENT : Prakash Shrivastava, J.:- This writ petition under Article 227 of the Constitution of India is at the instance of the plaintiff in the suit challenging the order of the Trial Court, dated 20-2-2014, whereby the petitioner's application under Order 18 Rule 3 of the C.P.C. has been rejected. In brief, the petitioner after concluding his evidence had filed the application under Order 18 Rule 3 of the C.P.C. stating that on the issues framed on the counter claim filed by the respondent, the petitioner wanted to lead evidence in rebuttal after the evidence of the respondent, therefore, the petitioner had sought permission to conclude his evidence reserving the above right. The said application of the petitioner has been rejected by the Trial Court by holding that the petitioner before commencement of the evidence should have reserved the right. 2. Learned Counsel appearing for the petitioner submits that it was not necessary for the petitioner to file the application under Order 18 Rule 3 of the C.P.C. at the time of commencement of the evidence, but he had the option to file the application after concluding his evidence also and that the Trial Court has rejected the application on erroneous premises, whereas the counsel for the respondents submits that since the petitioner did not file the application under Order 18 Rule 3 of the C.P.C. at the time of commencement of his evidence, therefore, no such application is maintainable at the subsequent stage. 3. I have heard the learned Counsel for the parties and perused the record. 4. Trial Court has framed issue on the counter claim filed by the respondents and the petitioner wants to reserve his right to lead evidence in rebuttal on the issues relating to the counter claim. The petitioner after concluding his evidence, had filed the application under Order 18 Rule 3 of the C.P.C. seeking permission to close the evidence reserving the right to lead the evidence in rebuttal on the issues of counter claim after conclusion of the evidence of respondents on those issues. 5. Order 18 Rule 3 of the C.P.C. gives option to the party beginning the evidence to lead evidence on all issues or reserve his right to lead evidence in rebuttal on the issue, the burden of proof of which is on other party. 5. Order 18 Rule 3 of the C.P.C. gives option to the party beginning the evidence to lead evidence on all issues or reserve his right to lead evidence in rebuttal on the issue, the burden of proof of which is on other party. Order 18 Rule 3 of the C.P.C. reads as under:-- "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 produce by the party beginning; but the party beginning will then be entitled to reply generally on the whole case." 6. The above Rule 3 does not provide for any stage when the option is to be exercised by the party beginning the evidence, therefore, there is no bar in filing the application by that party after conclusion of his evidence, but keeping in view the object of the provision such an application is to be filed by the party concerned before commencement of the evidence by the other parties. Meaning thereby the party beginning the evidence has the option to file an application reserving his right either at the commencement of his evidence or latest at the stage of conclusion of his evidence and before commencement of the evidence of the other side. This view is duly supported by the judgment of this Court in the matter of Chandrabai Vs. Rahul Kumar, reported in 1984 MPWN Note No. 483, judgment of the Rajasthan High Court in the matter of Inderjeet Singh Vs. Maharaj Raghunath Singh and others, reported in AIR 1970 Rajasthan 278, judgment of the Mysore High Court in the matter of 5. Chandra Keerti Vs. Abdul Gaffar and others, reported in AIR 1971 Mysore 17 and judgment of the Andhra Pradesh High Court in the matter of Illapu Nookalamma Vs. Illapu Simchachalam, reported in AIR 1969 Andhra Pradesh 82. 7. Maharaj Raghunath Singh and others, reported in AIR 1970 Rajasthan 278, judgment of the Mysore High Court in the matter of 5. Chandra Keerti Vs. Abdul Gaffar and others, reported in AIR 1971 Mysore 17 and judgment of the Andhra Pradesh High Court in the matter of Illapu Nookalamma Vs. Illapu Simchachalam, reported in AIR 1969 Andhra Pradesh 82. 7. In view of the above position in law, the Trial Court is not right in rejecting the petitioner's application under Order 18 Rule 3 of the C.P.C., which was filed at the stage of conclusion of evidence of the petitioner-plaintiff but before the commencement of evidence of the respondent. The Trial Court is not right in holding that the petitioner should have reserved the right before commencement of evidence and the prayer after conclusion of the evidence of petitioner cannot be granted. 8. In view of this the impugned order of the Trial Court is set aside and the application under Order 18 Rule 3 of the C.P.C. filed by the petitioner is allowed. Writ petition is accordingly disposed of.