Order 18 of Code of Civil Procedure (CPC) deals with hearing of the suit and examination of witnesses. Order 18 R.1 deals with right to begin i.e. the plaintiff has right to begin unless the defendant admits the facts alleged by the plaintiff. Order 18 Rule 2 deals with statement and production of evidence i.e. on the date fixed for hearing of the suit, a party having the right to begin is to state his case and to produce his evidence in support of the issues which he is bound to produce. It is thereafter that the other party is to state his case and produce his evidence. Under Order 18 Rule 3, a case where there are several issues and the burden of proving some of which lies on the other party, the party beginning on his option can produce his evidence on these issues or reserve it by way of evidence produced by the other party and in the latter case the party beginning can produce evidence on those issues after the other party has adduced all his evidence.[i]
Stage for exercising the option to reserve the right of rebuttal
Order 18 Rule 3 of CPC says that 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.
The above said rule lays down the procedure as to how the evidence has to be adduced whenever the burden of proof on some issues is on one party and on other issues on the opposite party. As to who is entitled to begin, Order 18, R. 1 states that the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either on the point of law or on some additional facts urged by the defendant, the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.
Order 18, R. 3, however, does not mention in what manner the option, either to adduce evidence or to reserve, has to be exercised by a party or as to when such a reservation is to be made. Questions have naturally arisen before the Courts on these matters of procedure. In several cases, it has been held that the option has to be exercised by the party intending to begin, at the time when he commences the evidence on his side. In some other cases, it has been held that he should exercise the said option after closure of the evidence on his side and before the opposite party begins his evidence.
In I. Nookalamma vs I. Simchachalam, it was held that the plaintiff is entitled to express his reservation to adduce evidence by way of rebuttal after the completion of the evidence on the side of the plaintiff and before the commencement of the evidence for the defendant under Order 18, R. 3 in respect of issues on which onus lies on the defendant. The option given to the party, contemplated under Order 18, R. 3, is to be exercised only at or before the time when the other party that has got the right to lead evidence begins, and not afterwards.
The abovesaid view that the option could be exercised by the party beginning, at or before the time when the opposite party starts his evidence, has been followed by the Mysore High Court in S. Chandra Keerti vs Abdul Gaffar[ii]. It was observed that, on the facts of the case, the party who began the case, namely, the defendant, could not be said to have intended or reserved his right to adduce rebuttal evidence. In that context, it was observed that it is reasonable that the right of reservation under Order 18, R. 3 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.
Hon’ble Rajasthan High Court in Inderjeet Singh vs Maharaj Raghunath Singh[iii], has also taken the same view. It was held that the rule does not prescribe the stage at which the Court should be informed about the exercise of the option therein. It is sufficient if the party leading evidence does so (provided it has not led any evidence on the issue covered by the option/on which it wants to give rebuttal evidence) before the other party begins its evidence.
A Division Bench of the Punjab and Haryana High Court in Jasvant Kaur vs Devinder Singh[iv], observed that on the language of Order 18, R. 3, CPC, on principle, and on the weight of precedent, the last stage for exercising the option to reserve the right of rebuttal can well be before the other party begins its evidence. So in view of the language of Order 18, Rule 3 CPC, on principle, and on the weight of precedent, the last stage for exercising the option to reserve the right of rebuttal can well be before the other party begins his evidence.
Manner of Reserving Right of Rebuttal
Coming to the manner of the exercise of the option, in some cases it has been held that there should be express reservation of the right to adduce rebuttal evidence and in some other cases it has been held that it need not be expressly reserved and that the reservation could be implied from the facts and circumstances of the case. There can be no difficulty in cases where the right of rebuttal is exercised expressly by the party who begins, either at the beginning of his evidence on his side, or, at any rate, when he closes the evidence and before the opposite party starts evidence on its side. This is done by writing in the ordersheet of the case that the party reserves his right to rebuttal on such and such issues.
The difficulty, however, arises in cases where there is no such express reservation. In a case where the party had not adduced any evidence on a particular issue, the mere fact that specific reservation is not made is not fatal, unless there is anything in the record either expressly or impliedly to hold that he lost his right to adduce evidence. There could be a situation where the party who adduced the evidence in the first instance exercised his right to begin his case and did not adduce any evidence on the particular issue and the party on whom the burden lay also did not adduce evidence on that issue and in such a situation there would be no evidence at all on the issue. Moreover there was no warrant to hold that in the absence of any specific written memorandum filed into Court reserving such right to adduce rebuttal evidence, the party must be deemed to have forfeited its right to adduce evidence in the absence of any other material on record. When nothing is disclosed in the record to show that he had forfeited his right, the mere omission to specifically reserve the right by filing a written application into Court would not destroy his right to adduce such rebuttal evidence.
In Shaw vs Beck[v], it was held that the plaintiff does not lose the right to have such discretion exercised in his favour by not adducing evidence in the first instance to rebut the plea set up by the defendant, although the nature of the defence is disclosed by the cross-examination of the plaintiff’s witnesses.
A similar situation arose in the case before the Punjab and Haryana High Court in Jaswant Kaur’s Case[vi]. In that case, the suit was one for permanent injunction restraining the defendant from interfering with the plaintiff’s possession. A large number of issues were framed and the burden of proof rested on the plaintiff on some issues and on the defendant on some other issues. The plaintiff, who apparently had the right to begin, had not completed their evidence both in affirmative and in rebuttal. The plaintiff’s counsel made a statement that he was closing his case in affirmative only. At a later stage when the plaintiff wished to lead evidence in rebuttal, an application was preferred on behalf of the defendant therein stating that the plaintiff should be disallowed from doing so because the option to reserve the right of rebuttal had not been expressly exercised at the very outset. The trial Court rejected the said application holding that the statement given by the plaintiff’s counsel that he was closing the evidence in the affirmative had implicit therein that the right of rebuttal stood reserved. In that case, no memorandum or anything in writing was filed into Court to show that the plaintiff had expressly reserved the right of rebuttal. Even so, the trial Court held reservation could be implied. The said view was affirmed by the Division Bench and, in that context, the provisions of Order 18, R. 3 were examined and a reference was made to various decisions and also to Order 16 R. 1, CPC. The Court initially held that the reservation could be made by the party beginning the evidence at any stage before the opposite party already started its evidence. The Court then considered the question whether it could be said that there was any reservation by implication. In that context, Sandhawalia, C. J. observed as follows:
“…. .The modalities of reserving the right of rebuttal also calls for some comment. It appears to me that herein also an overly strict view is not to be taken. If it is possible to necessarily imply from the mode of reservation that the right of rebuttal has been retained, then it should not be negatived, merely on the ground that it has not been so done in express terms. Cases where the party or its counsel makes the statement that he closed his evidence in the affirmative only, would inevitably imply that rebuttal evidence may well be led and consequently such right has been reserved.”
If, however, there is no express reservation, nor any such reservation which could be implied from the facts and circumstances of the case, the party would not be entitled to adduce rebuttal evidence.
Understanding through an Example
Suppose these issues are framed by the court in a suit:
- Whether the agreement to sell dated ………in respect of the property in suit was arrived at between the plaintiff and defendant and, if so, to what effect? (Onus of proof on Plaintiff)
- Whether the plaintiff has paid Rs……… the defendant towards the part payment of the agreement to sell? (Onus of proof on Plaintiff)
- Whether the receipt dated…… and pages….. of the agreement to sell dated…..are forged documents? (Onus of proof on defendant)
It can be seen from the above that the burden of proving, inter alia, issue Nos. 1 and 2 is on the plaintiff, whereas the burden of proving issue No. 3 is on the defendant. The plaintiff has to give evidence on the existence of the agreement to sell dated…..as well as on the payments made by the plaintiff to the defendant to the extent of Rs …..It may be seen that the alleged receipt of part payment dated…. has been challenged by the defendant as being a forged document.
With regard to first two issues plaintiff has right to begin. With regard to third issue he has two options:
- He can produce his evidence first on the third issue or
- He can give evidence by way of rebuttal and for that plaintiff has to express his reservation to adduce evidence by way of rebuttal after the completion of his evidence on the issues no. 1 and 2, the burden of proving which lies on him and before the commencement of the evidence for the defendant under Order 18, R. 3 in respect of issue no.3, the burden of proving which lies on the defendant. The option given to the plaintiff in this case, as contemplated under Order 18, R. 3, is to be exercised only at or before the time when the defendant that has got the right to lead evidence on issue no.3 begins, and not afterwards.
On the basis of above discussion it is clear that the reservation of the right to adduce rebuttal evidence need not always be express but it can also be implied from the facts and circumstances of the case. Implied reservation can said to be in those cases where the party closes its evidence in affirmative only (meaning closing evidence on those issues the burden to prove which lied on him).
So 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. In such a case, it must be held that the party had implicitly reserved the right to adduce rebuttal evidence. So, apart from express reservation, the reservation could be implied from the facts and circumstances of the case or the conduct of the case.
[i] Chakkar Pani vs Onkar Nath, (1996) 114 PLR 342
[ii] AIR 1971 Mysore 17
[iii] AIR 1970 Raj 278
[iv] (MR 1983 Punj & Har 210)
[v] (1853) 8 Exch 392
[vi] (MR 1983 Punj & Har 210)
ABOUT THE AUTHOR
Harshit is a Civil Judge-cum-JMFC at Rajasthan Judicial Services, and a doctoral candidate (Ph.D.) at NLU Jodhpur. He can be reached at firstname.lastname@example.org.
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