Hon'ble SHARMA, J.—This petition has been filed against the order dated 7th September, 2012 whereby the application of the respondent no.1 Rasool Mohammed under Order 18 Rule 3 CPC as non-objector before the executing court has been allowed and the trial court has denied the petitioner, as objector to lead rebuttal evidence in the course of execution proceedings.

2. The facts of the case are that Rasool Mohammed respondent-plaintiff (hereinafter 'the plaintiff') instituted a suit for eviction against one Babu Lal respondent No.2 herein and son of the petitioner (hereinafter 'the defendant') before the learned Additional Civil Judge (Jr. Division) No.1, Jaipur City, Jaipur which was dismissed on 6th April, 1998. The plaintiff Rasool Mohammed filed an appeal No.45/1998 against the judgment dated 6th April, 1998 before the learned District & Sessions Judge, Jaipur which was allowed vide order dated 24th November, 1998 and the suit for eviction was decreed in favour of the plaintiff. The order dated 24th November, 1998 passed in appeal has since not been modified, vacated or set aside, the same has attained finality. Consequently, the plaintiff took execution proceedings.

3. In the execution proceedings taken by the plaintiff one Jhuthi Devi, the mother of defendant, filed objections. The objections were opposed by the plaintiff. On the pleadings filed under execution proceedings, issues were framed. The objector (now the petitioner, Jhuthi Devi) led her evidence on the issues framed by the learned executing court. The objector and the plaintiff as the non-objector led their respective evidences. Thereafter, following the clo-sure of the evidence of the parties in the execution proceedings, the objectors sought to bring in additional evidence by way of rebuttal. In opposition to the additional evidence sought to be brought in by the objectors through rebuttal evidence, the plaintiff filed an application under Order 18 Rule 3 CPC.

4. On the said application under Order 18 Rule 3 CPC filed by the plaintiff (non-objector), the executing court has taken a view that the objector not having reserved her right to lead rebuttal evidence either by way of application in writing or by way of recorded oral submission, in respect of issues on which the burden was on the objector, she could not be allowed to lead rebuttal evidence in view of the plain language of Order 18 Rule 3 CPC. In support of its conclusion, the executing court relied on a judgment of this Court reported in RLW 1978 page 61 titled Kalyan Dass versus Kishan Karan. Counsel for the petitioner-objector has however submitted that the judgment of this Court in the case of Kalyan Dass (Supra) has been diluted by this Court in its subsequent judgment in the case of Gad Singh & Others versus Phool Chand & Anr. reported in 1997(2) WLN 205. It has been submitted that this Court in the case of Gad Singh (Supra) relying on the judgment of the Punjab and Haryana High Court in Prem Singh Pratap Singh versus National Insurance Co. Ltd. reported in AIR 1984 P&H 34 has held that it is not imperative that the option to lead rebuttal evidence should be specifically exercised by way of moving an application for the purpose or having the option formally recorded in the order-sheet of the concerned court.

5. It has been submitted that the Court has taken a view that even an implied option to reserve the right to lead rebuttal evidence can be culled out from the record of the proceedings. It is submitted that consequently in view of subsequent judgment in the case of Gad Singh (Supra), the objector ought to have been allowed to bring in her rebuttal evidence in respect of issue No.3 even where a formal application or an oral recording in regard thereto had not been made on the file of the trial court at the time of commencement of the objector's evidence.

6. I have considered the submissions made by the learned counsel for the petitioner and perused the petition including the impugned order.

7. In my c

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