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2015 DIGILAW 548 (ORI)

Rajakishore Biswal v. Mohan Charan Biswal

2015-09-21

A.K.RATH

body2015
JUDGMENT : Dr.A.K.Rath, J. Aggrieved by and dissatisfied with the order dated 22.1.2008 passed by the learned Civil Judge (Sr. Division), Jagatsinghpur in T.S.No.77 of 2002, the instant petition is filed under Article 227 of the Constitution of India. By the said order, the learned trial court rejected the application of the petitioner under Order 18 Rule 3 of C.P.C. to adduce rebuttal evidence. 2. To appreciate the case, it is not necessary to delineate the entire facts of the case. Suffice to say that the petitioner as plaintiff filed a suit for permanent injunction along with other consequential reliefs in the court of the learned Civil Judge (Sr. Division), Jagatsinghpur, which is registered as T.S.No.77 of 2202. Pursuant to issuance of summons, the defendants entered appearance and filed written statement along with counter claim praying inter alia for partition of the suit schedule land. The plaintiff filed written statement of the counter claim. In course of hearing, he was examined and cross-examined as P.W.1. On 10.1.2008 an application was filed on behalf of the plaintiff under Order 18 Rule 3 C.P.C. praying therein to permit him to adduce rebuttal evidence. The defendants have filed objection to the said petition. It is stated that after closure of the evidence of the plaintiff, the petition filed by him is not maintainable. The learned trial court came to hold that the plaintiff could have filed petition before beginning of his evidence. So at this stage his option to adduce further evidence to reply the questions of the defendants is not maintainable. Such an option is available before beginning of the evidence of the plaintiff at least, in course of his evidence. But after closure of the evidence of the plaintiff, he is not allowed to adduce evidence when the evidence of the defendants side has started. Having held so, the learned trial court rejected application. 3. Heard Mr.Bhuyan, learned counsel for the petitioner and Mr.Satpathy, learned counsel for the opposite parties. 4. Mr.Bhuyan, learned counsel for the petitioner submits that the learned trial court has committed a manifest illegality and impropriety in holding that after closure of evidence of plaintiff, he cannot be allowed to adduce rebuttal evidence. Drawing attention of this Court to the order dated 18.12.2007, vide Annexure-6, he submits that the plaintiff was examined and cross examined at length. Mr.Bhuyan, learned counsel for the petitioner submits that the learned trial court has committed a manifest illegality and impropriety in holding that after closure of evidence of plaintiff, he cannot be allowed to adduce rebuttal evidence. Drawing attention of this Court to the order dated 18.12.2007, vide Annexure-6, he submits that the plaintiff was examined and cross examined at length. A petition was filed on 18.12.2007 for time to adduce further evidence. The same was allowed and the suit was posted to 10.1.2008 for further evidence. On 10.1.2008 a petition was filed on behalf of the plaintiff under Order 18 Rule 3 C.P.C. supported by affidavit praying to permit him to adduce rebuttal evidence. Thus, before hearing of the plaintiff was closed, the application for rebuttal evidence was filed. He cited decisions of this Court in the case of Sri Nilakantha Rath Vrs. Sri Natha Maharana, 72(1991) C.L.T. 509 and 2010 (Sopp.l) OLR 950 Smt. Prativa Kar Vrs. Sri Ananda Chandra Das, 109 (2010) CLT 507. 5. Per contra, Mr. Sathpathy, learned counsel for the opposite parties supports the order passed by the learned trial court. 6. Order 18 Rule 3 C.P.C., which is the hub of the issue, is quoted hereunder:- “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 produce by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.” 7. On an interpretation of the said Rule, a Bench of this Court in the case of Sri Nilakantha Rath (supra) held that for its application the first condition to be satisfied is that there must be several issues involved in the suit. The issues referred to in the said provision obviously mean issues of fact, because evidence is required to be led only on issues. Therefore, in order to attract the provision, there must be more than one issue of fact. The issues referred to in the said provision obviously mean issues of fact, because evidence is required to be led only on issues. Therefore, in order to attract the provision, there must be more than one issue of fact. It was further held that although the provision does not prescribe any particular stage at which the option should be exercised, it is only fair and reasonable that the same should be exercised before the party (exercising the option) begins his evidence and in no case after evidence from the other side has began. That is because, the other party must know clearly before he begins his evidence that the first party has actually not finished adducing his entire evidence in the suit. The same view was taken in the case of Smt. Prativa Kar (supra) ( emphasis laid). 8. On 18.12.2007, the plaintiff was cross-examined at length and an application was also filed by the plaintiff for time to adduce further evidence. The same was allowed and the suit was posted to 10.1.2008. On 10.1.2008, the plaintiff filed an application under Order 18 Rule 3 C.P.C. praying therein to permit him to adduce rebuttal evidence. Thus, before the defendants began their evidence, the plaintiff filed application. There are several issues in the suit. Burden lies on the defendants to proof some of the issues. In view of the same, the plaintiff has exercised option to adduce rebuttal evidence before defendants began. 9. In view of the same, the learned trial court has committed a patent error of law in rejecting the application of the plaintiff. The order dated 22.1.2008 passed by the learned Civil Judge (Sr.Division), Jagatsinghpur in T.S.No.77 of 2002 is quashed. The learned trial court shall allow the plaintiff to adduce rebuttal evidence. Accordingly, the petition is allowed.