C.M.P. No.1295 of 2016

25.10.2016

This petition challenges the order dated 10.8.2016 passed by the learned Civil Judge (

Sr.Division), Bolangir in Civil Suit No.53 of 2007. By the said order, the learned trial court

allowed the application of the plaintiff to adduce rebuttal evidence after the evidence of th

e defendants is over.

Opposite party no.1 as plaintiff instituted the suit for partition and permanent injun

ction impleading the petitioner and opposite parties 2 to 12, 14 and 15 as defendants. Pursuan

t to issuance of summons, defendant nos.1, 3, 4 and 5 filed written statement. The petitioner

, who is defendant no.13, filed the written statement. The plea of the contesting defendants i

s that there was a previous partition. After closure of evidence, the plaintiff filed a petiti

on on 20.7.2016 praying therein to reserve his right to adduce rebuttal evidence. The learned

trial court came to hold that onus of proving some of the issues of partition lies on the defe

ndant. Held so, the learned trial court allowed the petition.

Heard Mr.Nanda, learned counsel for the petitioner and Mr.S.K.Samantray on behalf of M

r.S.K.Panda, learned Advocate for opposite party no.1 submits that the plaintiff has taken a c

alculated chance of adducing evidence after closure of evidence.

Per contra, Mr.Samantary, learned Advocate for opposite party no.1 submits, that since

the contesting defendants have taken a plea of previous partition, onus lies on them to prove

the same.

But then no application under Order 18 Rule 1 C.P.C. for right to begin was filed. The

plaintiff adduced evidence. In

view of the same, the learned trial court is not justified in allowing the application of the

plaintiff after closure of evidence of the plaintiff to reserve right to adduce rebuttal evid

ence.

In the wake of aforesaid, the order dated 10.8.2016 passed by the learned Civi

l Judge (Sr.Division), Bolangir in Civil Suit No.53 of 2007 is quashed. It is open to the plai

ntiff to adduce further evidence. Thereafter the defendants shall adduce evidence. The learn

ed trial court shall conclude the hearing of the suit by end of January, 2017.

The petition is allowed.

.

Dr.A.K.Rath, J.

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