[Cites 6, Cited by 0]
Madhya Pradesh High Court
Saleem vs Abdulah Khan on 13 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:1093
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 13th OF JANUARY, 2026
MISC. PETITION No. 31 of 2026
SALEEM S/O SHRI MOHAMMED KHAN MEWATI
Versus
ABDULAH KHAN S/O SHRI NISSAR KHAN MEWATI
AND ANOTHER
Appearance:
Petitioner - plaintiff by Shri Makbool Ahmad Mansoori - Advocate.
Respondent No.2 - State of Madhya Pradesh by Shri Ayushyaman
Choudhary, Government Advocate appearing on behalf of the Advocate
General, on advance copy.
ORDER
Heard on the question of admission and IA No.43 of 2026 , an
application for stay.
This miscellaneous petition under Article 227 of Constitution of India
has been filed by the petitioner - plaintiff challenging impugned order dated
17.11.2025 (Annexure P/1) passed in Regular Civil Suit No.187-A of 2022
by the learned 2nd Civil Judge, Senior Division, Jaora, District Ratlam (MP)
whereby an application (IA No.01 of 2025 ) filed on behalf of the plaintiff -
petitioner under Order 18 Rule 3 of Code of Civil Procedure, 1908 (herein
after referred to as the CPC) has been dismissed, on the ground that before
commencing his evidence, the plaintiff has not opted for rebutting the
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evidence on issues, which are to be proved by the defendant.
2. Learned counsel for the petitioner - plaintiff submits that there is no
provision under Order 18 Rule 3 of the CPC that option provided for leading
rebuttal evidence by the plaintiff should be opted at any particular stage.
Therefore, he submits that the trial Court's impugned order is bad in law,
where the learned trial Court has dismissed the application only on the
ground that before starting plaintiff's evidence, he has not opted for reserving
his right to rebut the evidence adduced by the defendant on the issues, which
are to be proved by him.
3. For this, learned counsel has relied upon para 7 of the judgment
passed by the Orissa High Court in case of Aranya Kumar Panda v.
Chintamani Panda & others reported in 1976 SCC OnLine Orissa 85 : AIR
1977 Orissa 87 and para 3 of the judgment passed by the High Court of Delhi
in case of Wazirpur Small Industries Association (Regd.) v. Union of India
& others reported in 2010 (115) DRJ 221 .
Relevant para 7 of the judgment in case of Aranya Kumar Panda
(supra) reads, as under: -
"7. It is clear from the above provisions that in a case where the
burden of proving some of the issues lies on one of the parties,
then, in such a case, it is open to the party leading evidence, if he
so chooses, to reserve his evidence by way of rebuttal to the
evidence to be produced by the other party. In the present case, it
was the duty of the plaintiff to lead evidence as the burden of
proof lies on the person who would fail if no evidence is adduced
on either side (vide Section 102 of the Evidence Act). It was for
him to exercise the option to adduce the rebuttal evidence on issue
No. 8 onus of which lay on the defendants 2 and 4. The question is
at what stage the option is to be exercised. On a plain reading of
the provisions of Order 18, Rule 3 of the CPC I am unable to
accept the view that a party having the right to begin would
exercise his option before he leads his evidence. The law does not
prescribe any particular stage at which the option is to be
exercised. I am of the opinion that the provisions of Order 18,
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Rule 3 are 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. I am fortified in this view by the decisions reported in AIR
1969 Andh Pra 82 (Illapu Nookalamma v. Ullapu
Simachachalam) and AIR 1971 Mys 17 (S. Chandra Keerti v.
Abdul Gaffar). The plaintiff was, therefore, within his limits in
exercising the option after the close of his evidence and before the
commencement of the defendant's evidence."
Relevant para 3 of judgment in case of Wazirpur Small Industries
Association (supra) reads, as under: -
"3. With due respect to the Single Judge of the Orissa High Court,
I consider that where the burden of proving some issues is on the
defendant and plaintiff has to start its case, the plaintiff starts
leading evidence on the issues on which burden is on the plaintiff.
The plaintiff, after closing his evidence on those issues, even if
does not tell the Court that he was reserving his right to lead
evidence in rebuttal, will have a right to lead evidence in rebuttal
after the defendant had led evidence, on those issues where the
onus of proving was on the defendant. T h e right of rebuttal is
provided under Order 8 Rule 13 CPC and the Order does
not specify that an option is to be given by the plaintiff after its
evidence was over. T h i s right has been given irrespective of
exercise of the option at that stage. The Court cannot read what is
not written in the Statute. The Statute is to be interpreted in a plain
manner in which it lays down the law. It is only after defendant's
evidence the plaintiff can decide whether there was necessity of
leading evidence in rebuttal or not and at that stage plaintiff can
exercise his right of leading evidence in rebuttal."
4. Considering the submissions in light of judgment relied upon by
the learned counsel for the petitioner - plaintiff, it is appropriate to reproduce
the provision of Order 18 Rule 3 of the CPC to appreciate the controversy in
the present case, which runs, as under: -
"3. Evidence where several issues. - Where there are several
issues, the burden of proving some of which lies on the 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."
4.1 From perusal of the aforesaid provision, it is clear that the plaintiff
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can reserve his right for rebutting the evidence on the issues, which are to be
proved by the defendant; and no stage has been prescribed for invoking the
aforesaid provision. This is supported by the judgment in cases of Aranya
Kumar Panda (supra) and Wazirpur Small Industries Association (supra) as
well.
5. In view of the aforesaid, this Court is of the considered view that
the learned Court below has committed illegality in dismissing the
application filed on behalf of the petitioner - plaintiff on the ground that it
has not been filed before starting his evidence, therefore, the contentions
raised on behalf of the plaintiff have substance.
6. Accordingly, the present miscellaneous petition deserves to be and
is hereby allowed; and impugned order dated 17.11.2025 is hereby set aside.
The net result is that the application filed on behalf of the petitioner -
plaintiff will be deemed as allowed and the trial Court will act accordingly.
Pending interlocutory application, if any, stands disposed off.
(BINOD KUMAR DWIVEDI)
JUDGE
rcp
