- (1.) Pursuant to a reference, dated 07.12.2012, we are seized of the matter. It would be expedient to set out as to what indeed is the issue that has been referred to be resolved by a larger bench. The reference reads as thus: "Learned counsel for the petitioners/ defendants has referred to the provision of Order 18 Rule 3 of the Code of Civil Procedure (for short 'the Code') and cited judgments delivered in Surjit Singh and others Versus Jagtar Singh and others, 2007 1 RCR(Civ) 537, which approved the observations made in the cases Swaran Singh Vs. Bhagwan Singh, 2000 1 RCR(Civ) 521 and National Fertilizers Ltd. v. Municipal Committee, Bathinda, 1982 AIR(P&H) 432) wherein it was held that if the plaintiff has led evidence on all the issues and does not reserve the right to lead evidence on the issues the burden of which is on the defendants, then permission to the plaintiff to lead evidence in rebuttal on even those issues the onus of which is upon the defendant(s) cannot be granted as the same would be against the observations made in the aforesaid judgments and would prejudice the rights of the defendant(s). To the contrary, it is argued that provisions of Order 18 Rule 3 of the Code cannot be read independently but have to be read in conjunction with Order 18 Rule 1 of the Code. There is handicap for the plaintiff to lead evidence upon the issues in the affirmative the onus of which is upon the defendants. The following are exigencies which may invite the plaintiff to lead evidence in rebuttal to those issues:- (1) If there is no such issue, the onus of which is upon the plaintiff(s); (2) the plaintiff(s) never knew what sort of evidence the defendant(s) would lead on those issues; (3) unless the defendant(s) has opened his cards to lead evidence it would be difficult for the plaintiff(s) to anticipate the extent of evidence sought to be produced; (4) In case the defendant(s) lead no evidence upon the issues, then it would be futile exercise for the plaintiff(s), if the plaintiff(s) lead evidence on those issues in affirmative; and (5) It is imperative right of the plaintiff(s) to lead evidence in rebuttal to such issues and the procedural law is not mandatory but directory in nature and in such circumstances it would not be necessary for the plaintiff(s) to reserve right to lead evidence in affirmative when the plaintiff(s) has otherwise the right and law permits him to lead evidence in rebuttal to such issues.
(2.) The judgments, as referred to above, appear to be on different set of facts and do not discuss the scope of Order 18 Rule 1 of the Code. It also appears that the judgments were delivered with a view to avoid unnecessary adjournments to be given to the plaintiff for providing him an opportunity time and again to lead evidence on unnecessary issues, which are legal in nature. The question with regard to the applicability of these provisions of law are almost coming for consideration every day.
(3.) In view of the aforesaid facts, the following questions arise for determination in cases where the onus of some issue lies upon the defendant:- (1) Whether it is mandatory for the trial court to provide an opportunity to the plaintiff to lead evidence in rebuttal only in those cases where he had reserved his right of rebuttal? (2) Whether plaintiff can independently lead evidence in rebuttal over such issues, the onus of which is purely on the defendant? (3) Whether Rule 3 of Order 18 of the Code if read in conjunction with Order 18 Rule 1 of the Code widens the scope of evidence in rebuttal? Let the matter be placed before Hon'ble the Chief Justice for referring aforesaid questions to a larger bench, if he so desires.";