- (1.) S. U. Khan, J. At the time of hearing, no one appeared for the respondents, hence only the arguments of the leaned Counsel for the applicant were heard.
(2.) REVISION is withdrawn/treated to be withdrawn to this Court under Section 24, C. P. C. This revision has been filed by the plaintiffs and is directed against order dated 10-9-1990 passed by Civil Judge, Basti in O. S. No. 26 of 1964. Through the said order, two applications given by plaintiffs/applicants numbered as 589-Ga and 590-Ga have been rejected. Through the first application, an earlier order dated 11-5-1990 was sought to be recalled. In the suit several issues were framed. The burden to prove the issues No. 2-A, 2-B and 4 was upon the defendants. Accordingly, defendants adduced the evidence on the said issues. Thereafter on 11-5- 1990, plaintiffs were directed to lead evidence and defendants were permitted to lead evidence in rebuttal of the evidence of plaintiffs after closer/completion of evidence of plaintiffs. The situation is covered by Order XVIII, Rule 3, C. P. C. , which is quoted below : "3. Evidence where several issues.- Where there are several issues, the burden of proving some of which lies on the other 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 other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case. " Through Allahabad High Court, Amendment dated 20-6-1936, the said rule was substituted by following : "3. (1) Where there are several issues the burden of proving some of which lies on the other party, the party beginning may at his option, other party, beginning may at his option, either state his case in the manner aforesaid and produce his evidence on those issues or reserve the Statement of his case and the production of his evidence on those issues by way of answer to the evidence produced by the other party; and in the latter case, the party beginning may state his case in manner aforesaid and produce evidence on those issues after the other party has produced all his evidence. (2) After both parties have produced their evidence, the party beginning may address the Court on the whole case; the other party may then address the Court on the whole case; and the party beginning may reply generally on the whole case, provided that in doing so he shall not, without the leave of the Court, raise questions which have been raised in the opening address. " In the aforesaid rule, firstly it is not provided that specific permission of the Court must be sought for reserving the right to produce evidence; secondly the direction of the Court to the plaintiffs to adduce evidence was sufficient permission by the Court to the defendants to lead evidence on the remaining issues after the closure of the evidence of plaintiffs upon the said issues.
(3.) MOREOVER, the question that which party must first lead evidence on a particular issue can hardly be said to be a question of jurisdiction. It has been held in AIR 1992 AP 97 "nalajala Narasayya v. Nalajala Sitayya & Ors. " that option has to be exercised before other party begins it evidence, so that it might clearly note that the first party has not really finished. In the same authority, it has also been held that the party, who desires to exercise the option could either submit an application in writing or intimate to the Court orally about its intention to reserve the right of rebuttal. The argument of learned Counsel for the plaintiffs that permission to reserve the right should have been sought by the defendants before start of their (defendants) evidence is, therefore, not tenable. In a later authority of the same High Court reported in 2002 (5), Andhra Law Times 17, it has been held that what is required under the rule is jurisdiction (sic intimation) to the Court as to the option of the party but not permission of the Court to reserve his right to lead rebuttal evidence. However, it is always open to the Court to disallow a party to lead rebuttal evidence in the absence of an issue in respect of which the burden of proof lies on the other side (AIR Manual VIth Addition, Vol. 6, P. 13, Note-11 ).;