The option to reserve evidence in rebuttal under Order 18 Rule 3 CPC can be exercised after the plaintiff has examined a witness in support of its claim, provided that the plaintiff has given sufficient notice to the defendant of its intention to do so and has not already adduced evidence on the issues covered by the option.

JUDGMENT -The non-applicant-plaintiff filed a suit for recovery of an amount of Rs. 13,000 against the defendant towards the arrears of rent. It is not necessary to make a detailed reference to the allegations made in the plaint for deciding the limited controversy raised in this Civil Revision Application. The defendant contested this claim and contended that the amount already paid by him was not towards the rent but was towards initial deposit for purchase of a machine. He denied the claim made by the plaintiff and contended that on the other hand he is entitled to refund of an amount of Rs. 7,000 in view of the subsequent contract between the parties. Thus the defendant made a counterclaim of Rs. 7805, which included interest payable on the amount of Rs. 7,000. The defendant also paid necessary court-fee.

2. On the basis of the pleas incorporated in the plaint as well as the written-statement, the Civil Judge, Senior Division, Nagpur framed in all 8 issues. From the bare reading of these issues it is quite obvious that so far as issues Nos. 4, 5 and 6 are concerned, which are regarding the counter claim made by the defendant, the burden was placed on the defendant to prove his case and so far as other issues are concerned, the burden was upon the plaintiff. At the trial, the plaintiff examined one witness and then filed a pursis Ex. 56 dated 15th March 1975 in the following terms::

"The plaintiff does not want to examine any other witness in support of his case except the witnesses in rebuttal if necessary."

3. Thereafter the defendant entered into the witness-box and has also examined one Ramnarayan in support of his case as well as for rebutting the claim made by the plaintiff. After the defendant closed his case, the plaintiff made a request to the Court to record evidence of its witnesses in rebuttal of the evidence adduced by the defendant in support of his counter claim. This request made by the plaintiff was objected by the defendant vide his written objection dated 2nd May 1975 Ex. 66.

4; After hearing arguments the learned Civil Judge, Senior Division, Nagpur vide his order dated 13tb June 1975 overruled the objection raised by the defendant. According to the learned Judge, the plaintiff had already filed a pursis at Ex. 56 reserving his right to examine witnesses in rebuttal, if necessary. Thus the learned Judge found that the option contemplated by Order 18, rule 3, Code of Civil Procedure, was already exercised by the plaintiff and, therefore, he was entitled to examine the witnesses in rebuttal. Thus the objection filed by the defendant was rejected. It is this order of the learned Civil Judge, Senior Division, Nagpur, dated 13th June 1975, which is challenged before me.

S. The plaintiff has not chosen to put in appearance before this Court in spite of proper service. Therefore I had not the advantage of hearing any argument on behalf of the plaintiff.

6. Shti Rajkarne, the learned counsel appearing for the applicant, contended before me that in the present case the option should have been exercised by the plaintiff at the initial stage itself, that is, before beginning of the evidence on behalf of the plaintiff. Such an option cannot be exercised at a later stage after the plaintiff has chosen to examine one witness in support of its claim. Mr. Rajkarne further contended that apart from the exercise of the option in the present case the plaintiff has already adduced its evidence in rebuttal by examining Ravishankar (P. W. 1), who in his deposition has denied the counter claim made by the defendant. Therefore according to the learned counsel, there was 'no occasion for the plaintiff to exercise the option and therefore, the order passed by the learned Civil Judge. Senior Division is illegal.

7. So far as the first point relating to the exercise of the option is concerned. Shri Rajkarne is strongly relying upon a decision of the Madhya Pradesh High Court in Laxmi Narayan v. Baburam1. Wherein it was held by the

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