R. Dayal, J. - (1.) This is a Civil Revision preferred by the plaintiff-appellant under Section 115 of the Code of Civil Procedure against the under dated 10-6-1994 of the learned Addl. District Judge, Sikkim, rejecting the oral prayer made by the appellant to reserve his right to adduce rebuttal evidence, after his statement-in-chief had been recorded, before the defendants started with their evidence.
(2.) Examination-in-chief of the plaintiff was recorded by the trial Court on several dates and on its conclusion the plaintiff prayed on 26-5-94 that he wanted permission to reserve his right to produce evidence in rebuttal in respect of the issues, onus of which lay on the defendants. The learned Trial Court rejected his prayer by the impugned judgment after recording that it was difficult to say that the plaintiff had not led evidence on some of the issues in respect of which the burden of proof lay on the defendants.
(3.) I have heard learned counsel for the parties. The decision referred on this point is Nalajala Narasayya v. Nalajala Sitayya, AIR 1992 AP 97 , where after exhaustive review of several authorities, it was held that under Order 18, Rule 3 of the Code of Civil Procedure, the reservation of the right of adducing rebuttal evidence need not be express and need not always be by way of a memo filed on behalf of the party who has begun the evidence on his side. Of course, if the reservation is express, the matter would present no difficulty. But such a reservation could also be implied in a case where the counsel for such a party makes a statement that he is closing the evidence of his party in the affirmative only. It was further held that the right of reservation to produce evidence in rebuttal should be exercised either before the party begins his evidence or, in any event, before the other party begins his evidence so that it might be borne in mind that the party beginning has not closed the evidence. Therefore, the last stage for exercising the option to reserve the right of rebuttal can well be before the other party begins his evidence. I am in respectful agreement with the law laid down in this decision. Since the defendant-respondents have not yet started their evidence, the right of reservation to produce evidence in rebuttal still persists. Even if the plaintiff has led evidence in respect of certain issues on which the burden of proof lies on the respondents, it does not make any difference. So, it has not been found necessary to hear arguments on the question whether the plaintiff has led evidence on those issues also but in respect of which the burden initially lie on the defendant-respondents.;