Back
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Ajay Mohan Goel, J
Raj Kumar – Appellant
Versus
Sita Ram and others – Respondent
CMPMO No. 118 of 2023
For the Appellants/Petitioners: Mr. Naresh K. Sharma
For the Respondents: M/s Vinod Chauhan and Nandita
Parties must reserve their right to lead rebuttal evidence at the time of closing their own evidence; failure to do so prevents subsequent claims to a rebuttal right.
Headnote:(A) Civil Procedure Code - Order 18, Rule 3 - Right of rebuttal - Court finds that plaintiff did not reserve the right to lead rebuttal evidence when their evidence was closed, thus the trial court’s order granting this right is erroneous and unsustainable. (Paras 9-11)
(B) Evidentiary Rights - The court emphasizes the necessity of reserving the right to rebuttal at the closure of the plaintiff's evidence, explaining that without such reservation, right to lead rebuttal evidence cannot be conferred subsequently. (Paras 8-10)
Facts of the case:
The petitioner challenges a trial court’s order allowing a rebuttal when none was reserved during the evidence closure. The court had previously closed the plaintiff's evidence due to failure to produce witnesses.
Findings of Court:
The trial court’s order allowing rebuttal is set aside. The plaintiffs cannot present rebuttal evidence on certain issues, while the trial court is directed to finalize hearings based on available records.
Issues: Whether the plaintiff reserved the right to lead rebuttal evidence appropriately.
Ratio Decidendi: The court underscores that parties must reserve their right to rebut evidence at the time of closing their own evidence; failure to do so prevents subsequent claims to a rebuttal right.
Result: Petition allowed; trial court's order set aside.
| Table of Content |
|---|
| 1. petitioner's challenge against trial court's order. (Para 2 , 3 , 4 , 5) |
| 2. court emphasized procedural rights for rebuttal evidence. (Para 6 , 7) |
Ajay Mohan Goel, Judge (Oral)
By way of this petition, the petitioner has assailed the order passed by learned Trial Court dated 09.03.2023, in terms whereof, the learned Trial Court has ordered that the case be listed for rebuttal and arguments on 25.03.2023. The impugned order reads as under:-
“Statement of DW-2 recorded. DWs closed vide separate statement of ld. Counsel for defendant No. 2. Be listed for rebuttal and arguments on 25.03.2023.”
2. Learned Counsel for the petitioner argued that the impugned order is per se bad for the reason that in view of the fact
that no right of rebuttal was reserved by the plaintiff at the time when evidence of the plaintiff was closed by the Court, no right was conferred upon the learned Trial Court to grant this right to the plaintiff, as has been done in terms of the impugned order. Accordingly, he prayed that the impugned order be set aside and learned Trial Court be directed to hear the arguments in the case.
3. On the other hand, learned Counsel for the respondents submits that aos in the present case, the evidence of the plaintiff was closed by Court order, therefore, there was no occasion for the plaintiff to reserve the right of rebuttal. Accordingly, he submitted thhat as there is no infirmity in the order passed by the learned Trial Court, present petition be dismissed.
4. I have heard learned Counsel for the parties and have also carefully gone through the impugned order as well as other documents appended with the petition.
5. A perusal of the documents appended with the petition demonstrates that the Issues in the case were framed on 13.10.2017. Thereafter, an opportunity was granted to the plaintiff to lead evidence and ultimately, when the case was listed on 05.09.2022, the following order was passed by the learned Trial Court:-
“Taken up today for effective hearing. Ld. counsel for plaintiff has stated that he is directed by his counsel to give up the present witness, therefore, he give up PW Ram Pal vide separate statement. Record perused. Perusal of the case file shows that sufficient opportunities have already been granted to the plaintiff for examining PWs, but plaintiffs have failed to examinet all witnesses in evidence. Therefore, evidence of the plaintiffs is closed by Court orders. Be listed for DWs on 27.09.2022, Steps, if any be taken within 5 days.”
6. CA perusal of the order dated 05.09.2022 demonstrates that neither the plaintiff closed his evidence in affirmative nor any right was reserved to lead rebuttal evidence.
g7. This Court does not concur with the contention of learned Counsel for the respondent that because the evidence of the plaintiff was closed by the Court order, therefore, no opportunity was there to reserve the right of rebuttal as far as the plaintiff is concerned. Because on the date concerned, the plaintiff was being duly represented by a lawyer, he could have always made a statement that the right of the plaintiff to lead rebuttal evidence be reserved. This is more so for the reason that when order dated 05.09.2022 was passed, the evidence of the plaintiff was being recorded which obviously was being recorded after framing of the Issues and of course, post framing of the Issues, both the parties knew that onus to prove which particular Issue is upon which party. 8. Order 18, Rule 3 of the Code of Civil Procedure reads as under:-
“Order 18 Rule 3. Evidence where several issues— Where there are several issue s, the burden of proving some of which lies on the 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 othe
