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2016 DIGILAW 135 (ORI)

Prasanna Kumar Paikaray v. Prakash Kumar Paikaray

2016-02-17

A.K.RATH

body2016
JUDGMENT Dr. A.K.RATH, J - Assailing the order dated 27.12.2014 passed by the learned Civil Judge (Senior Division), Banpur in C.S. No.09/72 of 2014/2013, the instant application has been filed under Article 227 of the Constitution. By the said order, learned trial Court allowed the application of the plaintiff under Order 18 Rule 3 CPC and granted permission to the plaintiff to adduce evidence in rebuttal of the evidence produced by the defendants. 2. Opposite party no.1 as plaintiff instituted C.S. No.09/72 of 2014/2013 in the Court of the learned Civil Judge (Senior Division), Banpur for partition impleading the petitioner and opposite parties 2 to 5 as defendants. In course of hearing, the plaintiff examined three witnesses. While the matter stood thus, an application under Order 18 Rule 3 CPC was filed by the plaintiff praying therein to grant liberty to him to adduce evidence, if any, after closure of the evidence from the side of the defendants. It is stated that defendants had taken a plea that the plaintiff is the adopted son of one Padma Charan Paikray and he has been ousted from the suit property for more than twelve years. Burden lies on the defendants to prove the same. Therefore, it is necessary on the part of the plaintiff to reserve the right to adduce additional evidence, if any, after closure of the evidence of the defendants. The defendant no.5 filed an objection to the same contending, inter alia, that hearing of the suit having commenced, the petition is misconceived. By order dated 27.12.2014, learned trial Court allowed the application. 3. Heard Mr. Samir Kumar Mishra, learned counsel for the petitioner and Mr.Sidharta Mishra, learned counsel for the opposite party no.1. 4. Mr. Samir Kumar Mishra, learned counsel for the petitioner, submitted that after closure of the evidence of the plaintiff on all issues, the application was filed under Order 18 Rule 3 CPC for permission to adduce further evidence by way of rebuttal evidence to be produced by the defendants on the issue. Such a course is not permissible. He relied on a decision of this Court in the case of Aranya Kumar Panda v. Chintamani Panda and others, AIR 1977 Orissa 87. 5. Per contra Mr.Sidharta Mishra, learned counsel for the opposite party no.1, supported the impugned order. 6. Such a course is not permissible. He relied on a decision of this Court in the case of Aranya Kumar Panda v. Chintamani Panda and others, AIR 1977 Orissa 87. 5. Per contra Mr.Sidharta Mishra, learned counsel for the opposite party no.1, supported the impugned order. 6. Scope of Order 18 Rule 3 CPC has been succinctly stated by this Court in the case of Rajakishore Biswal v. Mohan Charan Biswal, 2015 (II) OLR 1104 . In paragraphs 6 and 7 of the report, it is stated thus: “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 produced 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. It was furtherheld 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 begun. 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).” 7. 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).” 7. On the anvil of the decision cited supra, the case may be examined. 8. The assertion of the defendants is that the plaintiff is the adopted son of Padma Charan Paikray and has been ousted from the suit land for more than twelve years. The learned trial Court has also framed issues on the said point. Since the burden of proving the fact that the plaintiff is the adopted son of Padma Charan Paikray lies on the defendants, the plaintiff has the right to reserve his evidence after completion of the evidence from the other side. Plaintiff has not closed his evidence. The defendants are yet to begin the evidence. As held in Rajakishsore Biswal (supra) in order to attract the provision, there must be more than one issue of fact. 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 begun. In the instant case, before closure of evidence, the plaintiff filed an application. The defendants have not begun their evidence. Thus the learned trial Court is quite justified in allowing the application. In Aranya Kumar Panda (supra), after closure of the evidence of the plaintiff on all issues, the plaintiff filed a petition under Order 18 Rule 3 CPC for permission to adduce further evidence by way of rebuttal of the evidence to be produced by the defendants on the issues, the onus of which lay on them. The learned trial Court rejected the petition holding, inter alia, that the onus on the plaintiff to prove all the issues, that the plaintiff had chosen in the first instance to give evidence on all the issues and that the plaintiff had already closed his evidence, the benefit of the provision of Order 18 Rule 3 CPC was not available to him. This Court held that if the plaintiff at the outset chooses to call any evidence covered by the option contemplated under Order 18 Rule 2 CPC, he will not be permitted to give further evidence in rebuttal of the evidence produced by the defendants. On a reference to the records, this Court found that the plaintiff had not produced any evidence on issue No. 8. After the plaintiff closed his case, certain documents relevant to the issue were produced on behalf of the defendants and the same were proved through witnesses. The plaintiff had no opportunity of inspecting those documents and of adducing any evidence to repel the defendants’ case. It was held that the trial Court was not justified in holding that the plaintiff had chosen in the first instance to give evidence on all the issues. There is no quarrel over the proposition of law laid down in Aranya Kumar Panda (supra). On a conspectus of the photostat copies of the deposition filed by Mr. Mishra, learned counsel for the petitioner, it is seen that the plaintiff has not adduced any evidence on the issue of adoption and ouster. The defendants are yet to begin their evidence. 9. There being no perversity or illegality in the impugned order passed by the Court below, this Court is not inclined to interfere with the same. Accordingly, the petition, sans any merit, is dismissed. No costs. Petition dismissed.