Telangana High Court
Devender Kumar vs Shri Pavan Kumar Agarwal on 7 August, 2024
THE HONOURABLE SRI JUSTICE SUJOY PAUL
CIVIL REVISION PETITION Nos.1877, 1880, 1881,
1882 AND 1883 OF 2024
COMMON ORDER:
Though these petitions arise out of different suits and some of the parties may be different, since the issue raised in all the petitions is one and the same, they are heard analogously and are being disposed of by this common order.
2. These Civil Revision Petitions are filed challenging the orders dated 22.01.2024 in O.S.Nos.431, 429, 432, 430 and 433 of 2015 respectively on the file of the Court of XI Additional Chief Judge, City Civil Court, Hyderabad (for short, Court below), wherein the Memos filed by the plaintiffs in the said suits under Order XVIII Rule 3 of Code of Civil Procedure, 1908 (CPC) for reserving their right to lead rebuttal evidence after completion of evidence of the defendants, were recorded permitting the plaintiffs to adduce rebuttal evidence. Challenging the same, the present Civil Revision Petitions are filed.
3. The brief facts of the case is that the said suits were filed by different plaintiffs against different defendants, however, 2 SP,J Crp_1877_2024 & batch defendant No.1 is common in all the aforesaid suits. When the suits are at the stage of closure of evidence of the plaintiffs, they filed aforesaid Memos under Order XVIII Rule 3 of CPC for reserving their right to lead rebuttal evidence after completion of evidence of the defendants. The Court below, vide impugned orders, permitted the plaintiffs to adduce rebuttal evidence after completion of defendants' evidence. Challenging the same, defendant No.1 in the said suits filed the present Civil Revision Petitions.
4. The petitioner/defendant No.1 assailed the impugned order dated 22.01.2024 by contending that in total, nine (9) issues were framed by the Court below in each suit. No doubt, the nature of certain issues were such which puts burden on the shoulders of the defendants to prove their case, yet the plaintiffs led evidence on each of the issues. In this backdrop, the Court below was not justified in passing the impugned docket orders dated 22.01.2024 whereby the plaintiffs' right was permitted to be reserved to adduce rebuttal evidence after completion of defendants' evidence.
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5. Criticizing this order, Sri R.A. Achutanand, learned counsel for the petitioner in all the petitions, advanced two fold submissions. Firstly, he submits that in view of the judgment in Syed Yousuf Ali v. Mohd. Yousuf 1, the Court below was not justified in accepting the plaintiffs' prayer based on the memos filed by them. The plaintiffs should have filed appropriate applications if they intended to reserve their right of adducing rebuttal evidence. Secondly, since the plaintiffs have led their evidence on all the issues, the question of reserving their right to adduce rebuttal evidence does not arise. In support of the aforesaid arguments, he placed reliance on the judgment of Orissa High Court in Aranya Kumar Panda v. Chintamani Panda and others 2 and judgment of High Court of Andhra Pradesh in Nalajala Narasayya v. Nalajala Sitayya and Others 3.
6. Per contra, Ms. D. Padmavathi, learned counsel appearing for Sri Pramod Kumar Kedia, learned counsel for the respondents/plaintiffs, supported the impugned docket orders and urged that Order XVIII Rule 3 of CPC does not require any 1 2016 (3) ALD 235 2 AIR 1977 ORISSA 87 3 AIR 1992 AP 97 4 SP,J Crp_1877_2024 & batch express application for reserving the right to adduce evidence where burden to prove certain issues are on the shoulders of the other side. In support of her contention, she placed reliance on Aranya Kumar Panda (supra), Nipendrachandra Bid vs. Rajaram Pulp And Paper Mills Ltd. 4 , Nalajala Narasayya (supra) and M/s.Venakta Ramana Agencies and others v. Koppu Gauranna and others 5.
7. The parties confined their arguments to the extent indicated above. Parties were heard at length and perused record.
8. Order XVIII Rule 3 of CPC reads as under:
"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."
(Emphasis Supplied)
9. The point involved in these cases is no more res integra. In Aranya Kumar Panda (supra), the Orissa High Court opined 4 1978 SCC Online BOM 61 5 2002 (3) APLJ 97 5 SP,J Crp_1877_2024 & batch that requirement of Order XVIII Rule 3 of CPC would be treated to be 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.
10. Pausing here for a moment, in the instant cases, admittedly, the plaintiffs intimated the Court below by filing memos before other party could begin its evidence that they are reserving their right to adduce evidence in rebuttal.
11. The Bombay High Court in Nipendrachandra Bid (supra) opined that "the law does not prescribe any particular stage at which the option is to be exercised". In that case, such an option was exercised before the defendant began his evidence. Therefore, in my opinion, it cannot be said that it was not open to the plaintiff to exercise such an option after it has examined a witness in support of its claim.
12. In the present cases, it could be safely said that there was sufficient compliance with the provisions of Order XVIII Rule 3 of CPC, as the option was given by the plaintiffs of reserving their 6 SP,J Crp_1877_2024 & batch right to adduce evidence in rebuttal even before the other party had began their evidence.
13. In Nalajala Narasayya (supra) on which interestedly reliance is placed by both the parties, it was held that the reservation of the right of adducing rebuttal evidence need not be expressed and need not always be by way of a memo filed on behalf of the party who has begun the evidence on his side. Likewise, in the case of M/s.Venakta Ramana Agencies and others (supra), the High Court of Andhra Pradesh held as under:
"5. ...in cases where the burden of proof on all the issues is on the plaintiff, question of his reserving a right to adduce rebuttal evidence does not arise... A Memo informing the Court that in respect of the issues on which the burden of proof is on the defendant, plaintiff is reserving his right to adduce rebuttal evidence would suffice. Such Memo must be filed before the defendant starts adducing his evidence."
(Emphasis Supplied)
14. The common string of principles travelling through the aforesaid judgments is that if party leading evidence gives intimation to the Court about its intention to adduce evidence in rebuttal, the Court below can exercise power flowing from Order XVIII Rule 3 of CPC. Thus, this Court is unable to persuade itself with the line of argument of learned counsel for the petitioner/defendant No.1 that memo will not suffice and the 7 SP,J Crp_1877_2024 & batch plaintiffs should have filed appropriate applications for reserving aforesaid right. The Court below, in my considered opinion, was equipped with the power to entertain such memos for exercising power under Order XVIII Rule 3 of CPC.
15. Learned counsel for the petitioner/defendant No.1, during the course of arguments, placed heavy reliance on the judgment in the case of Syed Yousuf Ali (supra). It is noteworthy that in the said case, the Court was interpreting a different provision i.e., Order XIII Rule 11 of CPC. The language employed in Order XIII Rules 1 and 3 is totally different than the language of Order XVIII Rule 3 of CPC. Thus, said judgment cannot be pressed into service.
16. In the instant suits, following issues were ultimately framed by Court below for its determination:
(i) whether the plaintiff is entitled to obtain a regular sale deed from the defendant on payment of balance sale consideration of Rs.18,82,224/- each in O.S.Nos.431/2015, 430/2015 & 433/2015, Rs.20,07,224/- in O.S.No.429/2015 and Rs.18,82,224/- in O.S.No.432/2015, as prayed for;
(ii) whether the plaintiff is entitled to specific performance of agreement of sale as prayed for;
(iii) whether the plaintiff is ready and willing to perform his part of contract as prayed for;
(iv) whether agreement of sale become impossible to perform by the defendants as it is frustrated as prayed by the defendants;8
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(v) whether the defendant has surrendered major portion of premises to the plaintiff as per the agreement as pleaded by the defendants;
(vi) whether the defendant is liable to be cancelled the agreement of sale as it become frustrated;
(vii) whether the defendant has to commence and complete the constructions as per the sanction of GHMC on failure the plaintiff may permit him to complete the same;
(viii) whether the defendant is liable to pay an amount of Rs.1,500/- per sq. feet towards construction from and out of the balance sale consideration;
(ix) to what relief?
17. A minute reading of the issues framed makes it clear that there are certain issues which were required to be proved by the defendants. In other words, prima facie issue Nos. iv, v, vi and vii are framed in such a way which puts the burden on the shoulders of the defendants. Learned counsel for the petitioner/defendant No.1 has also raised similar contention while drawing the attention of this Court on the aforesaid issues. However, his singular contention to wriggle out of the clutches of Order XVIII Rule 3 of CPC was that the plaintiffs have led evidence on the said issues.
18. In the considered opinion of this Court, since burden is on the defendants in relation to certain issues, the plaintiffs have every right to reserve their right to adduce evidence in rebuttal. 9
SP,J Crp_1877_2024 & batch The said right is flowing from the plain language employed in Order XVIII Rule 3 of CPC.
19. The Court below through docket orders permitted the plaintiffs to reserve their aforesaid right. The docket orders of Court below are in consonance with the object of Order XVIII Rule 3 of CPC. The docket orders of Court below by no stretch of imagination can be said to be without jurisdiction. The Court below has taken a plausible view which is in consonance with aforesaid judgments cited by learned counsel for the plaintiffs.
20. Interestingly in Dr. Syed Afzal v. Syed Hamza and others 6, the Court opined as under:
"8... What is required under the Rule is 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. To hold that it is mandatory for the party to file a petition seeking permission of the court to reserve his right to lead rebuttal evidence would be stretching too far the language of Order 18, Rule 3 of CPC. However, it cannot be disputed that unless the matter involves an issue, in respect of which the burden of proof lies on the other party Rule 3 does not entitle a party to reserve his right to lead rebuttal evidence..."
(Emphasis Supplied)
21. The scope of interference under Article 227 of the Constitution is limited. Interference can be made if order 6 2002 SCC ONLINE AP 507 10 SP,J Crp_1877_2024 & batch impugned is patently illegal or suffers from palpable procedural impropriety or perversity. Another view is possible, is not a ground for interference {See Shalini Shyam Shetty vs. Rajendra Shankar Patil (2010) 8 SCC 329}. In absence of any ingredient on which interference can be made, interference is declined.
22. The Civil Revision Petitions are dismissed confirming the docket orders dated 22.01.2024 in O.S.Nos.431, 429, 432, 430 and 433 of 2015 on the file of the Court of XI Additional Chief Judge, City Civil Court, Hyderabad. There shall be no order as to costs. Miscellaneous applications pending, if any, shall stand closed.
_________________ SUJOY PAUL, J Date: 07.08.2024 TJMR