Telangana High Court

Devender Kumar vs Shri Mohit 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,

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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

2016 (3) ALD 235

AIR 1977 ORISSA 87

AIR 1992 AP 97

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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

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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

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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

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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;

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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.

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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

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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