' Having heard the learned counsel for the parties on Thursday, the 8th October, 1992, I dismissed, by a short order, the application by the plaintiff for permission to lead evidence in rebuttal. The reasons for dismissal were not recorded immediately because by the time the arguments concluded the Court time was over. The following are the reasons for the short order.
2. On the pleadings of the parties as many as 24 issues have been framed; and it is common ground that out of those issues, burden of proving issues Nos. 4, 5, 6, 8, 12, 17 and 18 is on the defendant.
3. The plaintiff commenced his evidence on the 2nd November, 1988, and concluded it on the 21st February, 1990. The evidence which has been produced on behalf of the plaintiff is not confined to the issues the burden of which lies on the plaintiff but, as conceded by Mr. Faruqui, is also on the issues the burden of proving which was on the defendant. On the 21st February, 1990, the following order was passed:-- "Mr. Nasim Farooqui, the learned counsel for the plaintiffs states that the plaintiffs do not wish to lead any evidence except in rebuttal."
' Thereafter, the defedant led his evidence and concluded it on the 4th June, 1992, when the hearing was adjourned to a date in office for arguments.
4. Mr. Faruqui contended that in the circumstances of the case the plaintiff is entitled to lead evidence in rebuttal; and relied on the decisions in the case of Aranya Kumar Panda v. Chintamani Panda and others AIR 1977 Orissa 87 and Smt. Jaswant Kaur and another v. Devinder Singh and others AIR 1983 Punjab & Haryana 210. Mr. Munshi, on the other hand, contended that on a plain reading of the language of Order 18, Rule 3, C.P.C. It was clear that the option to lead evidence in rebuttal, must be exercised before the plaintiff begins his evidence. The question for decision, therefore, is -- what is the stage at which the option under Order 18, Rule 3, C.P.C., should, be exercised and whether the plaintiff had any option left to be exercised on the 21st February, 1990?
Order 18, Rule 3, C.P.C. Provides-- "Where there are several issues, the burden of proving some of issues, 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 "
5. Rule 3 of Order 18, C.P.C. Is to be read in conjunction with Rule 1 thereof. Rule 1 provides that the plaintiff has right to begin unless the defendant admits the facts alleged and contends that, either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of the relief which be seeks, in which case the defendant has the right to begin. Thus, the right to begin is conferred, by rule. 1, on the party on which the burden of proof lies. The scheme of the rule clearly is that, as generally the plaintiff has to prove his case, he has a right to begin except when the defendant admits the claim of the plaintiff but denies that the plaintiff is entitled to relief.
In the latter case, the defendant would fail if no evidence is led; and, therefore, the burden of proof is on the defendant and, consequently, he has a right to begin. Now when the burden of proving all the issues is on the party beginning, no difficulty can arise because after the conclusion of the evidence led by the party beginning, the other party leads his evidence. But, as has happened in this case, there are cases where burden of proving only some of the issues lies on the party beginning and that is when the provisions of Order XVIII, rule 3, CP.C. Are attracted. It is clear that Rule 3 applies only (i) where there are several issues and (ii) burden of proving some of those issues lies on the other party i,e, the party other than the party beginning. Now, the party beginning has in any case to lead evidence on the issues the burden of proving which lies on him and rule 3 is concerned only with the issues the burden of proving which lies on the other party and it is in respect of those latter issues that the party beginning had the option provided for in rule 3. The words "those issues" in rule 3 obviously refer to the earlier words "issues the burden of proving which lies on the other party". The option is that the party beginning may either produce his evidence on the issues the burden of proving which lies on the other party or reserve such evidence by way of answer to evidence produced by the other party.
6. Mr. Munshi contended that the option provided by rule 3 must be exercised before the party beginning produces any evidence. There is, however, no warrant for the contention in the language of rule 3 which, in any case, is concerned with evidence only on those issues the burden of proving which lies on the other party. It is true that there is no express provision in rule 3 as to the stage at which the option must be exercised but the necessary implication is that the option must be exercised before any evidence on such issues is produced. Since the option has been conferred in respect of the evidence on the issues the burden of proving which is on the other side, it stands to reason that the option may be exercised before any evidence is led on those issues either by the plaintiff or the defendant. It is, therefore, not necessary that the option must be exercised before the party beginning produces any evidence at all. It would be open to such party to produce evidence on such of the issues the burden of proving which lies on him and then, without producing any evidence on the issues the burden of proving which lies on the other party, to exercise the option provided for by rule 3.
7. The decisions cited by Mr. Faruqui may now be considered. In the case of Aranya Kumar Panda v.
Chintamani Panda the burden of proving one of the issues framed in the suit lay on the defendant.
The plaintiff produced evidence on the other issues i,e, the issues the burden of proving which was on him and produced no evidence on the issue the burden of proving which was on the defendant.
The view that a party beginning should exercise the option before he leads his evidence was not accepted and it was held that "the provisions of Order 18, Rule 3 are 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." That this must be understood subject to the proviso that the party beginning should not have led any evidence on the issues the burden of proving which is on the other party is clear from the facts of the case and also from the following observation:-- "It is no doubt true that if the plaintiff at the outset chooses to call any evidence covered by the option contemplated under Order 18, Rule 3, C.P.C. He will not be permitted to give further evidence in rebuttal of the evidence produced by the defendants."
' The decision, thus, far from helping the plaintiff, goes against him.
8. The case of Smt. Jaswa nt !Caw v. Devinder Singh was cited by Mr. Faruqui for the proposition that an overtly strict view should not be taken regarding the modalities of reserving the right of rebuttal and that if it is possible to necessarily imply from the mode of reservation that the right of rebuttal has been retained then it should not be negatived merely. On the ground that it has not been so done in express terms and that cases where a party makes a statement that he closes his side in affirmative only would inevitabley imply that rebuttal evidence may well be led. The learned counsel laid a great deal of stress on para. 13 of the judgment wherein the above observation occurs. The argument, however, is not germane to the present controversy because it is not in dispute in this case that the plaintiffs' counsel did, on the 21st February, 1990, state that he did not wish to lead further evidence except in rebuttal and this statement could amount to reservation of right to lead evidence in rebuttal. The question is whether the plaintiff, having led evidence on the issues the burden of proving which was on the defendant, had any option left to be exercised on the 21st February, 1990. Mr. Faruqui submitted that the answer to that question is in the affirmative and he relied on the decision in Smt. Jaswant Kaur's case although he was unable, in response to my express query, to point out anything in the judgment which supports his submission. In that case the burden of proving some of the several issues was on the defendant. The plaintiffs' counsel having closed their case "in the affirmative only", they wished at a later stage, to lead evidence in rebuttal; and the defendant made an application praying that the plaintiff should be disallowed from doing so because the option to reserve the right of rebuttal had not been expressly exercised at the very outset. The trial Court rejected the application. A revision application against the order of rejection came up before a Single Judge of the High Court, who referred the question to a larger bench which held that "the last stage for exercising the option to reserve the right of rebuttal can well be before the other party begins its evidence" (emphasis added). The case was then sent back to the Single Judge for decision on merits. The decision as to the stage at which the option may be exercised is, as far it goes, undoubtedly in accord with the true construction of rule 3 of Order 18, C.P.C. .But it does not go to the extent of saying that a plaintiff can exercise the option even after he has produced evidence on the issues the burden of proving which is on the defendant. The case is, therefore, of no assistance to the plaintiff. It needs to be restated in this connection that the option given by Order XVIII, Rule 3, Civil Procedure Code is EITHER to produce evidence on the issues the burden of proving which is on the other party OR to reserve such evidence. The option is thus to do one or the other not both. The plaintiff, admittedly produced evidence on such issues. He, thereby, exercised . The option given to him by Order XVIII, rule 3, C.P.C. And, therefore, there was no option left to be exercised on the 21st February, 1990. In the circumstances, the purported exercise of the option on the 21st February, 1990, was nothing but a vain attempt to eat one's cake and have it too. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.