rebuttal evidence = Order XVIII Rule 3 addresses the question as to what should be done when the burden of proving some of the issues lies on one party. The Rule reads as follows: Rule-3:- Evidence where several issues -- Where there are several issues, the burden of proving some of which lies on the 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. The first pre condition for invocation of Order XVIII Rule 3 is that there must be several issues, the burden of proving some of which lies on the party beginning. The second important aspect of Order XVIII Rule 3 is that it is only an option given to a party.

HONOURABLE SRI JUSTICE V. RAMASUBRAMANIAN           

C.R.P.No.5665 of 2017

15-12-2017

Chaganti Lakshma Reddy, S/o. Koti Reddy,R/o.Nunna, Vijayawada Rural Mandal,Krishna District, Vijayawada D.M.C. Petitioner/D 

1.Chaganti Siva Rami Reddy, S/o. Chaganti lakshma Reddy, Occ: Employee, at present resident of Bangalore, rep. by his Power
2.Dr. Chaganti Harsh Reddy, S/o. Changanti Lakshma Reddy, Occ: Doctor, Royal Residency, Flat No.501, Moghalrajapuram, Vijayaw 


Counsel for the Appellants: Mr. M. Radhakrishna

Counsel for the Respondent No.1: Mr. G. Narendra Raj

^Counsel for the Respondent No.2        : Mr. P. Rajasekhar

<GIST:

>HEAD NOTE: 

?Cases referred

1) 2008 (3) ALT 724
2) 2004 AIR SCW 1842 
3) AIR 1971 SC 996
4) 2005 (5) SCJ 519
5) (2015) 5 SCC 423


HONBLE SRI JUSTICE V. RAMASUBRAMANIAN         

C.R.P.No.5665 of 2017

ORDER:

      The 1st defendant in a suit for partition has come up with the above
revision, challenging an order passed by the trial Court allowing an
application filed under Order XVIII Rule 3 permitting the plaintiff to lead
rebuttal evidence on Issue No.1 after the completion of the defence
evidence.
      2. Heard Mr. M. Radhakrishna, learned counsel for the petitioner
and Mr. G. Narendra Raj, learned counsel appearing for the 1st
respondent/plaintiff.
      3. The 1st respondent herein filed a suit in O.S.No.181 of 2007 on
the file of the Additional District Judge, Vijayawada for partition and
separate possession of his 1/3rd share in suit A and B schedule
properties. The claim of the 1st respondent/plaintiff in his plaint was that
he was the son of the petitioner/1st defendant herein through his first
wife; that after the death of the 1st respondent/plaintiffs mother, the
petitioner/1st defendant married another lady and in the said wedlock, the
2nd respondent herein (2nd defendant in the suit) was born; that the
property described in plaint A schedule was allotted to the share of the
petitioner/1st defendant in a partition that took place between the
petitioner and his two brothers; that plaint A schedule property is a fertile
land, from the income out of which, plaint B schedule property was
purchased; that the plaint A and B schedule properties are joint family
properties in which he has a right to the extent of 1/3rd, and that therefore
he was filing a suit for partition.
      4. The father and the step son, who are defendants 1 and 2 in the
suit, filed their written statements, after which the trial Court framed three
issues for consideration. The issues were
1.      Whether the plaintiff is entitled for partition of Plaint A & B
schedule property as prayed for?
2.      Whether the plaintiff is entitled for future mesne profits of
Plaint A & B schedule properties?
3.      To what relief.

      5. Thereafter, the trial commenced and the 1st respondent/plaintiff
examined himself as PW.1 and marked 20 documents as Exs.A.1 to A.20. 
The Power Agent of the 1st respondent/plaintiff was examined as PW.2.
      6. Thereafter, the 1st respondent/plaintiff took out an application in
I.A.No.1284 of 2017 under Order 18 Rule 3 seeking permission to lead
rebuttal evidence after the completion of the evidence on the side of the
defendants. This application was allowed by the trial Court forcing the
petitioner/1st defendant to come up with the above revision.
      7. In order to understand the scope of the dispute raised in this
revision, it may be relevant to take note of the scheme of Order XVIII of
the Code. Order XVIII Rule 1 of the Code speaks about the right to begin.
In every suit, the plaintiff has the right to begin unless the defendant
admits the facts alleged by the plaintiff and contends that either in point
of law or on some additional facts the plaintiff is not entitled to any part of
the relief. In cases where the defendant admits the facts alleged by the
plaintiff and claims on a point of law or on an additional fact that the
plaintiff is not entitled to the relief, the defendant will have the right to
begin.
      8. In simple terms, the right to begin incorporated in Order XVIII
Rule 1 is what onus probandi is. Once the person on whom the onus to
prove a fact lies, goes to the witness box tenders evidence, then the
burden of proof would shift to the other party. This is where the
distinction between onus and burden lies.
      9. Once the party on whom the right to begin lies is determined, he
will then be obliged to produce his evidence in terms of Order XVIII Rule
2. Under Order XVIII Rule 2(1), the party having the right to begin should
state his case and produce his evidence. After he has produced his
evidence, the other party, in terms of Order XVIII Rule 2(2), should state
his case and produce his evidence. But notwithstanding anything
contained in the Rule, the Court may permit any party to examine any
witness at any stage.
      10. Order XVIII Rule 3 addresses the question as to what should be
done when the burden of proving some of the issues lies on one party.
The Rule reads as follows:
       Rule-3:- Evidence where several issues -- Where
there are several issues, the burden of proving some of
which lies on the 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. 
        
        11. The option given to a party is actually available only where
there are several issues, the burden of proving some of which alone lies
on him. The option available under Rule 3 is either to produce his
evidence on the issues with respect to which the burden lies on him or to
reserve it by way of an answer to the evidence produced by the other
party.
        12. The first pre condition for invocation of Order XVIII Rule 3 is
that there must be several issues, the burden of proving some of which
lies on the party beginning. The second important aspect of Order XVIII
Rule 3 is that it is only an option given to a party.
        13. In the case on hand, it is fairly conceded by the learned
counsel appearing for the respondents that there were no several issues,
the burden of proving some of which alone was on the plaintiff. I have
already extracted the issues framed by the trial Court. The issues 1 and 2
framed by the trial Court constitute a composite whole. In other words,
there was virtually only one issue and the plaintiff had elected to go to the
witness box first by exercising his right to begin under Order XVIII Rule 1.
        14. There was no other issue before the trial Court, in respect of
which the burden was on the defence. It is only in cases where the
burden of proof in respect of some issues were on the plaintiff and in
respect of the other issues were on the defence that the plaintiff can
invoke Order XVIII Rule 3 to confine his evidence in the first instance to
the issues with respect to which he has a burden, and to reserve his right
to produce rebuttal evidence in respect of issues for proving which the
burden was on the defendant. Therefore, the 1st respondent/plaintiff, in
the case on hand, could not have invoked Order XVIII Rule 3 at all, as the
most essential requirement of Order XVIII Rule 3, viz., (a) the existence of
several issues and (b) the burden of proving some of which lies on the
other party, were not there.
        15. Relying upon a decision of a learned Single Judge of this Court
in K. Anjamma @ Anjali Devi v. K. Sudarshan Reddy , it was
contended by the learned counsel for the 1st respondent/plaintiff that in a
suit for partition, the distinction between the plaintiff and the defendant
gets blurred. Therefore, it is contended by the learned counsel for the 1st
respondent/plaintiff that there was nothing wrong in the order of the trial
Court.
        16. If the above logic is accepted, the 1st respondent/plaintiff could
have made an endorsement and allowed the petitioner/1st defendant to go
to the witness box first. The 1st respondent/plaintiff exercised his right to
begin under Order XVIII Rule 1. Once he has gone to the witness box, he
cannot withdraw half way through, with liberty to come back again by
invoking Order XVIII Rule 3.
        17. Interestingly, it was conceded by the learned counsel for the 1st
respondent/plaintiff that in this case there were no several issues and that
Order XVIII Rule 3 had no application. But still the learned counsel for the
1st respondent/plaintiff, placing reliance upon the decision of the Supreme
Court in Shipping Corporation of India, Ltd., v. Machado Brothers ,
contended that wherever there is no specific provision for the grant of a
relief in the Code, the Court can invoke Section 151. But the said
argument has to be stated only to be rejected. Whenever the plaintiff
chooses to lead evidence first and to reserve his right to go back to the
witness box after the defendant completed his evidence, he has to invoke
Order XVIII Rule 3 alone. When there is a specific provision in Order XVIII
Rule 3, the plaintiff cannot bypass the same and claim that there is no
specific provision and that he could fall back upon Section 151 CPC.
        18. Inviting my attention to the decision of the Supreme Court in
The State Bank of Travancore v. Arvindan Kunju Panicker , the
learned counsel for the 1st respondent/plaintiff contended that a Hindu
family is presumed to be joint, unless the contrary is established. We do
not know why we should go into the said question. If it was the claim of
the 1st respondent/plaintiff that his pleading itself was sufficient to hold
the suit properties as joint family properties, he need not have gone to
the witness box and examined two witnesses. Accepting that the onus
was on him, he exercised his right to begin under Order XVIII Rule1.
Therefore, today he cannot go back to the aforesaid proposition.
        19. Relying upon the Supreme Court decision in Salem Advocate
Bar Association, Tamil Nadu v. Union of India , the learned counsel
for the 1st respondent/plaintiff contended that rules of procedure are only
handmaid of justice, and that therefore, the Courts should interpret the
Rules only to advance the cause of justice. We do not know how the said
principle could be invoked in this case. We are concerned in this case with
the question whether the plaintiff, after having chosen to examine two
witnesses, can seek the liberty of the Court to come back to the witness
box again after the defendant completed his evidence, for answering this
question. Therefore the said decision has no application.
        20. Drawing my attention to the decision of the Supreme Court in
Radhey Shyam v. Chhabi Nath , it is contended by the learned counsel
for the 1st respondent/plaintiff that the jurisdiction of this Court in a
revision under Article 227 is circumscribed. There can be no quarrel with
the said proposition. But when admittedly the plaintiff invokes a provision
of law inapplicable to his case and gets permission to withdraw himself
from the witness box with liberty to appear, and the Court falls into a trap
by granting the relief, the same would tantamount to an error of
jurisdiction, that is liable to be corrected by this Court. The revisional
jurisdiction of this Court under Article 227 would certainly be applicable to
cases of this nature, where the Court grants a relief on the basis of a
provision of law that is admitted before the High Court to be inapplicable
to the situation on hand.
        21. Therefore, the Civil Revision Petition is allowed and the
impugned order is set aide. It is open to the 1st respondent/plaintiff to
continue and complete the evidence on his side and thereafter it is up to
the defendants to lead evidence.
      22. As a sequel, miscellaneous petitions pending in this revision, if
any, shall stand closed. There shall be no order as to costs.

_________________________ 
V. RAMASUBRAMANIAN, J.   
15th December, 2017.

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