A trial court has the discretion to allow a party to examine a witness in rebuttal after the closure of the case, even if the witness was not mentioned in the list of witnesses filed.

ORDER :- The petitioner challenges the order dated 20-2-76 of the Civil Judge, Senior Division, Quepem, reserving the right to the plaintiff to rebut or impeach the witness of the defendant, by adducing evidence. It will be necessary to narrate a few facts which led to the passing of the impugned order.

2. A suit for permanent injunction was filed by the respondent/plaintiff against the petitioner/defendant. By order dated 25-2-72 only one issue was framed, which reads as under:-

"Does the plaintiff prove that the defendant encroached upon the property Goticachifonde with the boundaries mentioned in para 1 of the plaint?".

The burden of proving it, as is clear, lay on the plaintiff. On 20-2-76, after the fourth witness for the defence was examined, an application was made by the defendant stating that the defendant wished to examine one Anant Ganesh Foll Dessai, whose name was referred to in para 10 of the written statement. This application was objected to by the plaintiff and the plaintiff stated that in case the application was granted the plaintiff be given an opportunity of examining any person as witness to rebut the evidence brought by the defence at that stage. The learned trial Judge thereupon passed his order dated 20-2-76 whereby he allowed the defendant to examine the witness Anant Dessai and also further ordered as under :-

"In case the plaintiff feels it necessary, he shall be entitled to rebut or impeach the witness by adducing evidence."

The defendant has accordingly examined the said witness Anant in the trial Court. Thereupon the plaintiff made an application stating that he desires to examine three witnesses in rebuttal and that summonses be accordingly issued. That application was granted by order dated 11-3-76.

3. It was contended by Shri Kuncolienkar, learned advocate for the petitioner, that the order of the trial Court allowing the plaintiff now to examine any witness after his case was closed and even the defence was closed, will be allowing the plaintiff to re-open the case. It was argued that in the written statement filed by the defendant as far back as on 17-9-71, the case of the defendant was made very clear and in the said written statement the name of the witness Anant was also mentioned. The defence therefore was in advance made known to the plaintiff and it was his duty to adduce evidence before he closed his case. It was next pointed out that O. 18 R. 3 of the C. P. C. will not be applicable in this case as the only issue to be proved was to be proved by the plaintiff and therefore the question of adducing evidence in rebuttal as provided under O. 18 R. 3. C. P. C. does not arise in this case. He therefore submitted that the impugned order was without jurisdiction and prayed that it be set aside. In support of his case Shri Kuncolienkar also cited some decisions, namely, one in Illapu Nookalamma v. Illapu Simohachalam reported in AIR 1969 Andh Pra 82 and the other one in S. Chandra Keerti v. Abdul Gaffar, reported in AIR 1971 Mys 17.

4. Shri Raiturkar, learned advocate for the respondent, however canvassed before me that the defendant had not mentioned the name of the witness Anant in the list of witnesses filed by him; that the defendant suddenly introduced this witness by his application dated 20-2-76; that this application was objected to by him and the trial Court has allowed the defendant to examine that witness on the clear understanding that the plaintiff was also at liberty to adduce evidence in rebuttal of that witness. He therefore points out that when the defendant proceeded to examine his witness Anant, he had tacitly agreed to the second portion of the order, namely, the portion allowing the plaintiff also to adduce evidence in rebuttal, if the plaintiff so desired. Shri Raiturkar submits that the trial Court has exercised its discretion in a judicious manner when it has allowed the plaintiff to adduce evidence by way of rebuttal in view of the fact that the defendant was all