Andhra HC (Pre-Telangana)
Dr. Syed Afzal vs Syed Hamza And Ors. on 28 June, 2002
Equivalent citations: 2002(5)ALT175, 2002(2)LS330
Author: G. Rohini
Bench: G. Rohini
ORDER G. Rohini, J.
1. The second plaintiff in O.S.No.123 of 1997, on the file of the Court of the II Additional Chief Judge, City Civil Court, Hyderabad, filed this Revision aggrieved by the rejection of his application to reopen the evidence of the plaintiffs.
2. The brief facts of the case are as follows:
O.S.No.123 of 1997 has been initially filed by the 1st respondent herein for administration of the estate of his late father 'Syed Aziz'. The revision petitioner was originally arrayed as defendant No.8 in the suit. Later by order dated 22.9.1998 in I.A.No.1192 of 1998 he was transposed as 2nd plaintiff. After the issues were settled, the revision petitioner-Plaintiff No.2 was examined on 25.1.2000 as P.W.1. Another witness was examined as P.W.2, and thereafter, evidence of the plaintiffs was closed on 28.3.2000. Evidence on behalf of the defendants was commenced on 3.8.2000 and cross-examination of D.W.1 was completed on 17.8.2000. At that stage, the revision petitioner, who is the second plaintiff in the suit, filed I.A (SR) No.5007/2000 seeking to reopen the evidence of the plaintiffs. In the affidavit filed in support of the said petition he has stated that during the course of his evidence, he filed a memo dated 7.2.2000 reserving his right to lead rebuttal evidence if the need arises and since in the cross-examination of D.W.1 it has come out that the estate of late Syed Aziz remained intact and is liable to be partitioned and since D.W.1 was evasive in the cross-examination with regard to certain details, it is necessary to reopen his evidence which was closed on 28.3.2000. He also stated that certain crucial documents relating to his Income tax returns were acquired by him at a later date and it is necessary to bring them on record as evidence for proper adjudication of the suit. Accordingly, he sought permission of the Court to reopen his evidence.
3. The Court below by order dated 4.9.2000 rejected the said application at SR stage itself holding that it is only an attempt to cover up the laches found in the evidence of the plaintiffs.The Court below held that the memo filed by the plaintiff No.2 on 7.2.2000 is not sufficient to reserve the right to adduce rebuttal evidence under Order 18 Rule 3 of CPC. The Court below also observed that a petition under Order 18 Rule 3 of CPC has to be filed before the commencement of the evidence on the side of the plaintiffs specifying the issues on which the burden of proof lies on the defendant and since in the present case the burden of proof on all issues lies only on the plaintiffs, he is not entitled to reserve his right to adduce rebuttal evidence under Order 18, Rule 3 of CPC. Thus the Court below concluded that the plaintiff No.2-Revision Petitioner herein is not entitled to seek reopening of his evidence and accordingly dismissed the application. Aggrieved by the said order the plaintiff No.2 has come up with the present Civil Revision Petition.
4. I have heard Sri Vedula Venkataramana, the learned counsel for the petitioner, who has submitted that the Court below has erred in dismissing the application only on the ground that the memo filed by the plaintiff is not sufficient to reserve his right to lead rebuttal evidence. The learned counsel contends that to reserve the right to adduce rebuttal evidence under Rule 3 of Order 18 of CPC it is not mandatory to file an application to that effect and in the instant case since the plaintiff brought to the notice of the Court his intention to adduce rebuttal evidence even before the commencement of the evidence of the defendant, the Court below ought to have reopened his evidence for the said purpose.
5. On the other hand, the learned counsel for the respondents Sri Vilas V. Afzul Purkar vehemently contends that mere intimation to the Court that the plaintiff intends to adduce rebuttal evidence is not sufficient. According to him it is essential to file a petition under Order 18 Rule 3 CPC soon after the issues are settled and only when the Court allows such application the plaintiff will be entitled to adduce rebuttal evidence.
6. For proper appreciation of the respective contentions of the parties, it is necessary to examine the scope of order 18 Rule 3 of CPC which reads as follows.
Or 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 later 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 a plain reading of Rule 3 of Order 18 of CPC it is clear that when there are several issues and the burden of proving some of the issues lies on the other party, then an option has been given to the party beginning evidence either to produce his evidence or to reserve his right to adduce rebuttal evidence in respect of those issues in which the burden of proof is on the other party. Thus one of the requirements to be satisfied for reserving the right to lead rebuttal evidence is that there shall be an issue in respect of which the burden of proof lies on the other party. Then it is open to the party beginning evidence to reserve his right to adduce rebuttal evidence. It is pertinent to note that the language of Rule 3 does not indicate that the party who intends to adduce rebuttal evidence shall obtain the permission of the Court. On the other hand the language used is that "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......" The language is plain and unambiguous and there is absolutely no difficulty to understand the intention of the legislature. What is required under the Rule is intimation to the Court as to the option of the party but not permission of the Court to reserve his right to lead rebuttal evidence. To hold that it is mandatory for the party to file a petition seeking permission of the Court to reserve his right to lead rebuttal evidence would be stretching too far the language of Order 18, Rule 3 of CPC. However, it cannot be disputed that unless the matter involves an issue, in respect of which the burden of proof lies on the other party Rule 3 does not entitle a party to reserve his right to lead rebuttal evidence.Hence it is always open to the Court to disallow a party to lead rebuttal evidence in the absence of an issue in respect of which the burden of proof lies on the other side.
8. In the instant case the suit is filed for administration of the estate of late father of the plaintiffs and the issues settled by the Court below for trial are as follows:
1. Whether the plaintiff is entitled for any share in the estate of deceased Sri Syed Aziz as prayed for?
2. Whether plaintiff is entitled for the direction for payments to the plaintiff all the amounts due to the plaintiff out of the estate of the deceased as claimed in the plaint?
3. Whether the plaintiff is entitled for separate possession of his lawful share in the estate of the deceased as prayed for?
4. To what relief?
9. A perusal of the issues would show that the burden of proof on all the issues lies on the plaintiff. Therefore, the plaintiff is not entitled to adduce rebuttal evidence. Though as rightly submitted by the learned counsel for the petitioner the Court below is not correct in observing that the plaintiff cannot reserve the right to lead rebuttal evidence by filing a mere memo, since the mater does not involve an issue on which the burden of proof lies on the defendant, I am of the view that the plaintiff is not entitled to adduce any rebuttal evidence, and therefore as rightly held by the Court below, it is not necessary to reopen the evidence of Plaintiff. Hence the order under Revision is in conformity with the provisions of Order 18 Rule 3 of CPC and cannot be held to be tainted with any illegality or material irregularity in exercise of jurisdiction vested under law.
10. For the reasons stated supra, I do not find any ground to interfere with the order under revision. Accordingly the Civil Revision Petition is dismissed. There shall be no order as to costs.