' This civil revision is directed against an order passed by the Additional Administrative Civil Judge, Faisalabad (Lyallpur) on 6-11-1975 rejecting the application of the petitioner under section 151, C. P.
C. Praying that the plaintiff-respondent No, 1 be first called upon to conclude its affirmative evidence on the issues the onus of which lay on it before the petitioner leads his evidence.
2. Briefly stated, the facts are that respondent No, 1 filed a suit for recovery of Rs, 90,447.54 against the petitioner and respondent No,
2. On the pleadings of the parties nine issues were framed. The onus of proof of Issues Nos, 1, 2, 5, 6 and 7 was placed on the plaintiff-respondent No, I, whilst that of Issues Nos, 3 and 4 was placed on defendant No, 2 and of Issue No, 8 on the petitioner. Respondent No, 1 examined only two witnesses in the affirmative and on 21-5-1973 its counsel made a statement before the trial Court to the following effect Thereafter the case was adjourned for evidence of the petitioner. Some more adjournments were made when ultimately the petitioner made the application aforementioned under section 151, C. P. C. Stating that the plaintiff had not led all evidence on issues burden of which lay on it and that before the petitioner leads his evidence the plaintiff-respondent should be called upon to complete its evidence on issues burden of which lay on it. This request was declined by the impugned order dated 6-11-1975.
3. The learned counsel for the petitioner contended that no reservation was permissible for leading affirmative evidence by the plaintiff-respondent on issues burden of which lay on it. He submitted that allowing the plaintiff-respondent to reserve evidence on these issues is necessarily bound to cause prejudice to the case of the defendant-petitioner as he would not be in a position to rebut the same having concluded his evidence before the respondent.
4. The other objection raised by the learned counsel was in respect of that portion of the impugned order whereby responsibility was placed on the petitioner to adduce evidence on his own on the date to which the case was adjourned by the trial Court. It was contended that the trial Court could not fix such a responsibility especially when the witness to be examined by the petitioner was an employee of the plaintiff-respondent Bank and the petitioner was in no position to procure his attendance on base own.
5. The learned counsel for the respondent made the only submission that the application on which the impugned order was passed had, in fact, been moved only as a dilatory tactic to hold in abeyance the decision in the case and that the very fact that it was moved on 6-11-1975 when the evidence by the Bank had been closed on 21-5-1973 smacks of mala fide intentions of the petitioner.
6. For resolving the controversy involved in this petition, the provisions of Order XVIII, rules 1 and 3 of the Code of Civil Procedure and sections 101 and 102 of the Evidence Act are relevant. For facility of reference they are reproduced hereunder.:- "1. Right to begin-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 alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.
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 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.
"101. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
102. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."
' Reading of sections 101 and 102 of the Evidence Act clearly shows that whoever desires any Court to give a judgment as to any legal right dependent on the existence of facts has to prove those facts as existing.
7. The scheme of Order XVIII, C. P. C. Also is and suggests positively that as a general rule it is the plaintiff who has to prove his claim by affirmative proof for the Court has to see whether there is, a claim before it need enquire as to the truth or otherwise of the defence. The provisions of rule 3 apparently are subject to the provisions of Rule 1. Whether the plaintiff or defendant should lead evidence first is to be determined in accordance with rule 1. The reservation of right to lead evidence under rule 3 of Order XVIII, C. P. C. Is dependent on the fact of existence of several issues and can only be in respect of such issues onus of proving of which lies on the other party. The phrase "the other party" moans the party other than the one who has the right to begin and has begun. Rule 3 will not be available where the party on whom the burden of proof lies fails to adduce or does not adduce evidence bearing on the issues it was required to prove and later on after the opposite-party had led evidence on those points want to lead evidence on them.
8. It will certainly be in accordance with justice that a party who has to defend a suit should hear what its opponent has to say before it Is called upon to answer. Where therefore the burden of proof lies on the plaintiff of several issues, it is not proper to examine the witnesses of the defendant in the first instance and then take the evidence of the plaintiff for then the defendant will have no chance to rebut the evidence of the plaintiff on issues the onus of proving of which lay on the plaintiff.
9. Reverting to the case in hand, it would be found that out of the nine issues framed in the suit, the onus of proof of the material issues, i,e, Issues Nos, 1, 2, 5, 6 and 7 which relate to limitation, competency of the person filing the suit, proving as to whether the amount sought to be recovered is owed to the plaintiff and what rate of interest can be charged on the above said amount lies on the plaintiff. If the plaintiff therefore fails to prove any of the above issues by affirmative evidence, there will be nothing required to be enquired into the matter. Since the plaintiff had to prove the above issues, he had to begin the evidence, and, in fact, had begun the same, but before completing the 'whole of the evidence in the affirmative, part of it was sought to be produced after the evidence of petitioner-defendant by reserving the right. As already pointed out above, the conjunctive reading of rules 1. 2 and 3 of Order XVIII, C. P. C. Clearly shows that where the onus of proving some of the issues lies on the plaintiff, it is the plaintiff who has to begin the evidence on such issues and conclude the same thereon and may reserve evidence on such issues only the onus of proving of which lies on the defendant. In this view of the matter, it is rightly argued by the learned counsel for the petitioner that if the reservation of right by the plaintiff for adducing evidence on issues the onus of proving of which lay on it is allowed the defendant will be left helpless in rebutting the affirmative evidence of the plaintiff. It may be pointed out pertinently that the defendant leads evidence in rebuttal to the evidence of plaintiff on issues the onus of proving which lay on the plaintiff and also leads affirmative evidence on issues the onus of proving which lies on the defendant. It is the plaintiff then who has the right to rebut the evidence of the defendant on such issues only the onus of proof of which lay on the defendant.
10. Before parting with the case it may be observed that if a plaintiff has to appear to give evidence in affirmative and also in rebuttal, the proper course would seem to be that he should give affirmative evidence before the defendant is called upon to lead evidence and such plaintiff can be allowed to make a supplementary statement in rebuttal to the evidence of defendant also. I am conscious of the practice that prevails in subordinate Courts of reserving a plaintiff's evidence in affirmative till after defendant has closed his evidence and of allowing the plaintiff to give his evidence in affirmative and rebuttal thereafter. This practice is not in accordance with law and is likely to cause prejudice to the defendant. That being so such practice cannot be approved.
11. As a result of the above discussion I am of the view that the order of the trial Court rejecting the application of the petitioner cannot be maintained. I, therefore, accept this revision petition, set aside the impugned order dated 6-11-1975 and direct that before the petitioner is called upon to lead his evidence, the plaintiff shall adduce all his affirmative evidence on the issues the onus of proof of which lies on him or close the same.
12. In view of the acceptance of this revision petition on the first point, I am not called upon to record a finding on the second contention raised by the learned counsel for the petitioner. There will be no order as to costs