IN THE HIGH COURT OF MADHYA PRADESH

AT INDORE

BEFORE

HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI

th

ON THE 13 OF JANUARY, 2026

MISC. PETITION No. 31 of 2026

SALEEM S/O SHRI MOHAMMED KHAN MEWATI

Versus

ABDULAH KHAN S/O SHRI NISSAR KHAN MEWATI

AND ANOTHER

Appearance:

Petitioner - plaintiff by Shri Makbool Ahmad Mansoori - Advocate.

Respondent No.2 - State of Madhya Pradesh by Shri Ayushyaman

Choudhary, Government Advocate appearing on behalf of the Advocate

General, on advance copy.

ORDER evidence on issues, which are to be proved by the defendant.

Heard on the question of admission and IA No.43 of 2026, an

application for stay.

This miscellaneous petition under Article 227 of Constitution of India

has been filed by the petitioner - plaintiff challenging impugned order dated 17.11.2025 (Annexure P/1) passed in Regular Civil Suit No.187-A of 2022

nd

by the learned 2 Civil Judge, Senior Division, Jaora, District Ratlam (MP) whereby an application (IA No.01 of 2025) filed on behalf of the plaintiff - petitioner under Order 18 Rule 3 of Code of Civil Procedure, 1908 (herein after referred to as the CPC) has been dismissed, on the ground that before commencing his evidence, the plaintiff has not opted for rebutting the

2. Learned counsel for the petitioner - plaintiff submits that there is no provision under Order 18 Rule 3 of the CPC that option provided for leading rebuttal evidence by the plaintiff should be opted at any particular stage. Therefore, he submits that the trial Court's impugned order is bad in law, where the learned trial Court has dismissed the application only on the ground that before starting plaintiff's evidence, he has not opted for reserving his right to rebut the evidence adduced by the defendant on the issues, which are to be proved by him.

3. For this, learned counsel has relied upon para 7 of the judgment passed by the Orissa High Court in case of Aranya Kumar Panda v. Chintamani Panda & others reported in 1976 SCC OnLine Orissa 85 : AIR 1977 Orissa 87 and para 3 of the judgment passed by the High Court of Delhi in case of Wazirpur Small Industries Association (Regd.) v. Union of India & others reported in 2010 (115) DRJ 221.

Relevant para 7 of the judgment in case of Aranya Kumar Panda (supra) reads, as under: -

"7. It is clear from the above provisions that in a case where the burden of proving some of the issues lies on one of the parties, then, in such a case, it is open to the party leading evidence, if he so chooses, to reserve his evidence by way of rebuttal to the evidence to be produced by the other party. In the present case, it was the duty of the plaintiff to lead evidence as the burden of proof lies on the person who would fail if no evidence is adduced on either side (vide Section 102 of the Evidence Act). It was for him to exercise the option to adduce the rebuttal evidence on issue No. 8 onus of which lay on the defendants 2 and 4. The question is at what stage the option is to be exercised. On a plain reading of the provisions of Order 18, Rule 3 of the CPC I am unable to accept the view that a party having the right to begin would exercise his option before he leads his evidence. The law does not prescribe any particular stage at which the option is to be exercised. I am of the opinion that the provisions of Order 18, Rule 3 are sufficiently complied with if the party leading evidence intimates the court before the other party begins its evidence that it is reserving its right to adduce evidence in rebuttal on the other issues. I am fortified in this view by the decisions reported in AIR 1969 Andh Pra 82 (Illapu Nookalamma v. Ullapu Simachachalam) and AIR 1971 Mys 17 (S. Chandra Keerti v. Abdul Gaffar). The plaintiff was, therefore, within his limits in exercising the option after the close of his evidence and before the commencement of the defendant's evidence."

Relevant para 3 of judgment in case of Wazirpur Small Industries Association (supra) reads, as under: -

"3. With due respect to the Single Judge of the Oriss