Rajasthan High Court - Jaipur
Gad Singh And Ors. vs Phool Chand And Anr. on 8 August, 1997
Equivalent citations: 1997(2)WLN209
JUDGMENT Shiv Kumar Sharma, J.
1. The genesis of controversy in this revision relates to interpretation of Order 18 Rule 3 CPC. The defendants 1 to 3 (in short the defendants) have preferred this revision petition assailing the order dated November 13, 1996 of the learned Civil Judge, Niwai, whereby the application under order 18 Rule 3 read with Section 151 CPC was allowed and the non-petitioners (for short the plaintiff) was permitted to lead his evidence in respect of rebuttal in respect of issue No. 2.
2. The brief facts giving rise to this revision petition are that the plaintiff instituted a suit for permanent injunction in the trial court and the defendants filed written statement and on the basis of the pleadings of the parties as many as six issues were framed by the learned trial court. The plaintiff on April 19, 1993 closed his evidence and the case was posted for recording evidence of the defendants. The defendants closed their evidence on October 13, 1995 and the case was posted for final arguments. On November 10, 1995 the plaintiff filed an application under Order 18 Rule 1 read with Section 151 CPC and requested to adduce evidence in rebuttal on issue No. 2. The learned trial court vide its order dated November 13, 1995 allowed the application and permitted the plaintiff to lead evidence in rebuttal in respect of issue No. 2. Against this order that the defendants have filed this revision petition.
3. Mr. Narendra Jain, learned Counsel for the defendants placed reliance on Kalyan Dass v. Kishan Karan 1978 RLW 61 and contended that option under order 18 Rule 3 CPC has to be exercised by the party either by making an application in writing or by intimating the court orally about the intention to reserve the right of rebuttal, at the time of closing the evidence.
4. I have given my anxious consideration to the arguments advanced on behalf of the defendants and carefully perused the impugned order as well as the case law cited before me. This Court in Kalyan Dass v. Kishan Karan observed thus:
4. The trial court, was therefore not justified in allowing a further opportunity to the plaintiff to lead evidence in rebuttal in the interest of justice when it came to the definite conclusion that the plaintiff having failed to reserve his right to reading evidence in rebuttal was not entitled to any opportunity to do so. The plaintiff has no right left now to lead any further evidence in the case.
5. The learned trial court in the impugned order has referred the decision of Punjab and Haryana High Court in Prem Singh Pratap Singh v. National Insurance Co. Ltd. wherein Hon'ble Gokul Chand Mittal, as he then was, observed thus:
If the right to lead evidence in rebuttal is not specifically reserved by a party but if it is possible to necessary imply that the right of rebuttal had been retained then the right to lead evidence in rebuttal should not be negatived merely on the ground that it had not been so done in express terms.
6. After the amendment made in the Code of Civil Procedure, in the year 1976 Sub-rule (4) in Rule 2 of Order 18 was incorporated which provides thus:
(4) Notwithstanding anything contained in this rule, the court may for reasons to be recorded direct or permit any party to examine any witness at any stage."
In Rule 2 of Order is before the addition of Sub-rule (4) by the amendment Act of 1976, the party having right to begin has to produce his evidence first and thereafter the opposite party was required to produce his evidence. Expression "at any stage" means any stage previous to delivery of judgment and therefore after recording its reason the court is legally competent and within its jurisdiction to allow any witness to be examined till passing of the judgment in the matter.
7. I am of the view that the plaintiff even without reserving his right to lead evidence in rebuttal, can apply to examine witnesses after the defendant has closed his evidence in view of Order 18 Sub-rule (4). Therefore I subscribe the view expressed by the Punjab and Haryana High Court. As the learned court below has passed the reasoned order in the interest of Justice. I see no error of jurisdiction in it and if the order is allowed to stand it would not occasion failure of justice.
8. In the result the revision fails and is hereby dismissed. The impugned order of the learned trial court stands confirmed Costs easy.