Madras High Court
T.R.S. Mani Sastrigal Alias Mani ... vs T.R. Suryanarayanan on 6 January, 1995
Equivalent citations: AIR1996MAD152, AIR 1996 MADRAS 152, (1996) 3 ICC 196
ORDER
1. The revision petitioner is the defendant in O.S.No. 332 of 1987 in the Court of District Munsif of Sirkuli, The respondent/plaintiff instituted that suit against him for recovery of possession of 62 cents of land in R.S. No. 153/11 of Thirnvengadu, Sirkali taluk. It is the case of the respondent/plaintiff that this part of the vacant site situate on the southern side of the defendant's house was allotted to him in the family partition. His farther permitted the revision petitioner defendant to put up a cattle shed and hay-rick therein on a charge of Rs. 2/- per month. In the agreement entered into between the parties on 1-7-1973 this permission was reiterated. In July, 1984 the compensation amount was enhanced to Rs. 50/- per year by mutual arrangement.
2. The revision petitioner resisted the suit contending that he came to occupy the land more than 60 years ageo and eversince then he is in continuous enjoyment of the same. Except those portions over which hay-rick and cattle shed have been put up by him, the other part of the land is under cultivation. This cultivable extent was let out to one Chinnadurai by the father of the respondent plaintiff nearly 20 years ago. From then onwards Chinnadurai alone has been raising crops in this part of the land The revision petitioner was only collecting the share of the income, realised by him from the said Chinnadurai as per the direction of the father of plaintiff and the arrangement was one of 'Waram' The revision petitioner is all along remitting the value of the share due to the father of the respondent/plaintiff. The said Chinnadurai is a cultivating tenant within the meaning of Tamil Nadu Act 25 of 1955 and he is entitled to the protection under that Act. In view of the fact that the collection of rent on 'Waram' basis was being done by the revision petitioner, the agreement included the cultivable portion also to ensure due remittance of the share due to the fattier of the plaintiff. The suit without impleading Chinnadurai is bad for non-joinder of necessary parties.
3. Of the issues framed issue No. 3 relates to the non-joinder of Chinnadurai.
4. The trial commended on 25-3-1994 and the respondent/ plaintiff examined himself as P.W. 1. In the chief examination he has stated that it is not correct to say that his father had let out the disputed property to Chinnadurai for the purpose of cultivation. The said Chinnadurai never enjoyed any portion of the suit property. Chinnadurai never paid 'Waram'. Neither the revision petitioner nor Chinnadurai has any right or interest in the suit land. There is no such person as Chinnadurai. P.W. 1 was recalled and cross-examined on 14-6-1994. On 7-7-94 respondent/plaintiff filed a memo in the trial court under O. 18, R.3 and Section 151, C.P.C. reserving his right of adducing rebuttal evidence in respect of issue No. 3 on non-joinder of Chinnadurai. On the next day, respondent filed a reply memo repudiating the right of the Plaintiff to reserve adducing rebuttal evidence on this issue. His plea was that since evidence covered by the option has already been let in by the plaintiff as P.W. 1, no further evidence by way of rebuttal is permissible. However the court below allowed the memo and upheld the right of the plaintiff to let in rebuttal evidence on this aspect. The defendant assails this order in this revision petition.
5. Thiru S. Ramamurthi, learned senior counsel for the revision petitioner has first drawn my attention to the provisions of Order 18, Rule 3, C.P.C. which runs as follows :--
"Order 18, Rule 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 be entitled to reply generally on the whole-case." Learned counsel for the revision petitioner does not dispute the fact that there are more than one issues, in this case and the burden of proving whether the suit is bad for non-joinder of Chinnadurai which is the third issue is on him. His plea is that the plaintiff has been given two options. Either he can let in evidence on non-joinder also or reserve it by way of answer to the evidence later on to be produced by the defendant. In case the plaintiff reserves his right to let in evidence on issue No. 3, he may produce his evidence on that issue after the defendant has let in all his evidence. But since in this case the plaintiff respondent has already let in evidence on issue No. 3, it is no longer open to him to reserve his right to read rebuttal evidence after the examination of the witnesses of the defendant is over. A careful reading of Order 18, Rule 3, C.P.C. also reveals that the option to reserve his right to let in rebuttal evidence is available to the plaintiff if only the plaintiff abstains from leading evidence on issue No. 3 where the burden of proof is on the defendant. In this case, no doubt, the plaintiff as P.W. 1 has spoken in the witness box denying the right and enjoyment of Chinnadurai in the demised premises and the payment of waram by Channadurai. In fact, the very existence of Chinnadurai is also denied by P.W. 1 in the witness box. However, as rightly contended by learned counsel for the respondent/plaintiff, the evidence let in does not touch on issue No. 3. Plaintiff cannot be expected to prove a negative. The necessity to implead Chinnadurai will arise if only the defendant is able to establish on the basis of oral and documentary evidence about the alleged lease in favour of Chinnadurai and the collection of waram from him. Merely because plaintiff has stated in his chief examination denying those aspects, it cannot be said that positive evidence has been let in by the plaintiff on this issue.
6. Learned counsel for the revision petitioner placed reliance on Aranya Kumar Panda v. Chintamani Panda, and submitted :
"Where the burden of proving some of the issue lies on one of the parties, it is open to the party leading evidence to reserve his evidence by way of rebuttal to the evidence to be produced by the other party. Further the law does not prescribe any particular stage at which the option is to be exercised. The provision of Order 18, Rule 3 would be sufficiently complied with if the party leading evidence intimates the court before the other party begins its evidence that it is reserving its right to adduce evidence in rebuttal on the other issues. If the party at the outset chooses to call any evidence covered by the option contemplated under Order 18, Rule 2, C.P.C. he will not be permitted to give further evidence in rebuttal of the evidence produced by the other party."
But there is no scope of applicability of the ratio laid down therein in the present case. As we have already seen, it cannot be said that the plaintiff herein has let in any positive evidence. What the plaintiff has spoken to so far as P.W. 1 cannot be construed as positive evidence on issue No. 3. So there is no infirmity in the order passed by the court below which calls for interference of this Court in this revision.
7. Learned counsel for the revision petitioner also advanced arguments on the maintainability of this recision. However, we have held that there is no case on merits for the revision petitioner and it has to be dismissed in the circumstances of the case. While so, there is no necessity to give a finding on this aspect.
8. In the result, the revision is dismissed. No costs.
9. Petition dismissed.