RESERVING A RIGHT TO ADDUCE REBUTAL EVIDENCE MUST BE DONE BEFORE THE COMMENCEMENT OF THE DEFENDANT'S EVIDENCE=The Judgment in S. Chandra Keerti (1-supra) does not help the petitioner, because, in that case, it was held that that when the law does not prescribe a stage at which a party should apprise the Court of his exercising the option under Rule 3 of Order XVIII of the Code, it is reasonable that the same should be done before he begins to adduce his evidence and in any case before the other party begins his evidence so that it might be borne in mind that the party beginning has not closed his evidence. Even this Judgment recognized the right of the plaintiff to reserve his right to lead further evidence after closure of the evidence of the defendant. All that the said Judgment laid down was that such an option should be exercised by the plaintiff before the defendant begins his evidence. In the present case, it is not the pleaded case of the petitioner that the respondent has exercised such an option before the petitioner commenced his evidence. For the above mentioned reasons, I do not find any merit in the Civil Revision Petition and the same is accordingly dismissed. As a sequel, CRP.M.P.No.7250/2011 is disposed of as infructuous.


HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY        

C.R.P.No.5110 of 2011

20-1-2012

Mangala Pagadala Subbamma    

M. Narayanappa

 Counsel for petitioner : Sri N. Aswarthanarayana

 Counsel for respondent : --

?CASES REFERRED:    
1. AIR 1971 Mysore 17


ORDER:
        This Civil Revision Petition arises out of order dated 23-6-2011 of the
learned Junior Civil Judge, Dharmavaram whereby he has allowed the Memo filed by
the respondent, who is the plaintiff in O.S.No.73/2008, to close the evidence on
his side reserving his right to let in further evidence after the petitioner-
defendant completing his evidence.
        I have heard Sri N. Aswarthanarayana, learned counsel for the petitioner
and perused the record.
        The respondent filed the above mentioned suit for declaration of his title
to the suit property against the petitioner.  After adducing evidence on his
side, the respondent filed the above mentioned Memo with a request to the Court
below to close the evidence on his side with liberty to him to lead further
evidence after completion of the rebuttal evidence of the petitioner.  The
learned counsel appearing for the petitioner before the Court below has taken
notice of the said Memo on 9-6-2010, but no counter-affidavit was filed opposing
the same.  The Court below, by the order under revision, allowed the said Memo
filed by the respondent.  The petitioner filed the present Civil Revision
Petition assailing the said order.
        At the hearing, the learned counsel for the petitioner submitted that the
order allowing the Memo filed by the respondent is contrary to the procedure
stipulated under Order XVIII Rules 1 and 2 of the Code of Civil Procedure, 1908
(for short "the Code").  In support of his submission, the learned counsel
placed reliance on the Judgment in       S. Chandra Keerti Vs. Abdul Gaffar1.
        Order XVIII Rule 1 of the Code confers right on the plaintiff to begin the
case unless the defendant admits the facts alleged by the plaintiff and contends
that either in point of law or on some additional facts alleged by the
defendant, the former is not entitled to any part of the relief which he seeks
and in which case the latter has the right to begin the case.  Rule 2 of Order
XVIII of the Code sets out the sequence in which the parties have to proceed
with the case by producing evidence.  Under this provision, the plaintiff has to
begin the case and produce his evidence and thereafter the opposite party shall
state its case and produce evidence, with the party beginning the case having
the right to reply.  Rule 3 of Order XVIII of the Code, however, carves out an
exception.  It postulates that where there are several issues and the burden of
proving the same 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 such a 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 specifically on
the evidence so produced by the party beginning; but the party beginning will
then be entitled to reply generally on the whole case.
        While the right of the plaintiff to begin the case is conferred by the
provisions of Order XVIII of the Code, as noted above, Rule 3 thereof, operates
as an exception to the same.  Therefore, whether a case falls under Rule 3 or
not depends upon the issues arising therein.  In the instant case, when the
respondent made a request by way of a Memo to allow him to close his evidence
with liberty to adduce further evidence depending upon the rebuttal evidence
that may be produced by the petitioner, the latter has not raised an objection
by filing a counter-affidavit.  Unless the petitioner has contested the Memo
filed by the respondent and pleaded that the case does not fall under Rule 3 of
Order XVIII of the Code, it is not permissible for her to challenge the decision
of the Court below.
        The Judgment in S. Chandra Keerti (1-supra) does not help the petitioner,
because, in that case, it was held that that when the law does not prescribe a
stage at which a party should apprise the Court of his exercising the option
under Rule 3 of Order XVIII of the Code, it is reasonable that the same should
be done before he begins to adduce his evidence and in any case before the other
party begins his evidence so that it might be borne in mind that the party
beginning has not closed his evidence.  Even this Judgment recognized the right
of the plaintiff to reserve his right to lead further evidence after closure of
the evidence of the defendant.  All that the said Judgment laid down was that
such an option should be exercised by the plaintiff before the defendant begins
his evidence.  In the present case, it is not the pleaded case of the petitioner
that the respondent has exercised such an option before the petitioner commenced
his evidence.
        For the above mentioned reasons, I do not find any merit in the Civil
Revision Petition and the same is accordingly dismissed.
        As a sequel, CRP.M.P.No.7250/2011 is disposed of as infructuous.
________________________  
Justice C.V. Nagarjuna Reddy
Date : 20-1-2012

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