1. Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties, this petition is heard finally at the stage of admission.

2. By this petition, the petitioner challenges the order dated 16.11.2009 passed by the learned 5th Joint Civil Judge, Senior Division, Aurangabad below Exh.49 in Special Civil Suit No.265 of 2008. The original plaintiff, i.e. the petitioner has filed suit for specific performance against respondents. Plaintiff had entered into an agreement of sale in respect of a land on 10.11.2006. The consideration amount for the entire land was fixed at Rs.37 lacs and amount of Rs.5 lacs was paid towards the earnest money. As per the case of the petitioner, respondent No.1 sold this land to respondents 2 and 3 hence, suit for specific performance was filed. Respondent No.1 in the written statement while denying the case of the plaintiff contended that the amount of Rs.5 lacs was given as a loan and agreement of sale was entered as a security document and it was not a sale transaction. Learned trial Judge framed issues on 7.10.2008 at Exh.13. In issues 1, 2, 4 and 5 the burden was passed on the plaintiff and in issue No.3 defendant No.1 was required to prove that he approached the plaintiff for a hand loan of Rs.5 lacs and agreement of sale dated 10.11.2006 was a security document against the loan, as contended. Thus, while framing issue No.3, the burden of proving of the facts mentioned in issue No.3 was put on defendant No.1.

3. After framing of the issues plaintiff i.e. the petitioner tendered his evidence. After the cross-examination of the plaintiff an application at Exh.49 was moved by the plaintiff under Order 18 Rule 3 of the Code of Civil Procedure, thereby reserving his right to produce the evidence by way of rebuttal in respect of issue No.3, if required. Respondent Nos.2 and 3 filed reply opposing the said application. After hearing the parties trial Court rejected the said application on the ground that it is not a proper stage to file such application under Order 18, Rule 3 of the Code of Civil Procedure.

4. Learned Counsel for the petitioner submits that Order 18 Rule 3 of the Code of Civil Procedure is silent about the stage at which such application can be moved by the party, who begins. In the present case plaintiff has filed the suit for specific performance and plaintiff has begun the evidence and, therefore, after his cross-examination he moved the application that he has right to answer and rebut the evidence tendered by the defendants in respect of issue No.3. In support of his submissions, he relied on

5. Learned Counsel for the respondents in reply submitted that it is the suit for specific performance, where the trial Court has given the finding on the application moved by the plaintiff in respect of the burden on the parties. Therefore, the order cannot be challenged under Article 227 of the Constitution. He further submitted that plaintiff was aware of the issue No.3 and on whom the burden of proving the issue No.3 was. So, plaintiff ought to have moved this application in the beginning when he adduced his evidence in affidavit-in- chief. Learned Counsel submitted that trial Court has rightly rejected the said application, as the application was moved at a late stage and if it would have been allowed, then it would have caused prejudice.

6. Heard Counsel. Gone through the application of the original plaintiff, reply filed by the respondents and order passed by the learned trial Judge, so also the rulings relied on by the Counsel. It is not disputed that the burden of issue No.3 is on the defendants, in view of the contentions raised and defence taken by the defendants in their written statement. Two options are available under Order 18, Rule 3 of the Code of Civil Procedure to a party, who begins while dealing with the issue of which the burden is on the other party. The party, who begins either can produce evidence on such issues or party, who begins, by