THE HON'BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.4605 of 2009 27.11.2009 Between: Puppala Gangaratnam, W/o.Venkata Ramana Murthy … Petitioner AND Patcha Subbayamma, W/o.Late Nageswara Rao And others … Respondents THE HON’BLE SRI JUSTICE V.V.S. RAO CIVIL REVISION PETITION No.4605 of 2009 ORDER: Petitioner is plaintiff in O.S.No.343 of 2004 on the file of the Court of Additional Senior Civil Judge, Eluru. She filed the suit for partition and separate possession. Her case is that suit schedule properties, which originally belonged to her mother, were bequeathed to her under a Will. Respondents 1 to 4 herein are contesting the suit. They examined D.W.3 and marked Ex.B28, which is a partition-cum- cancellation deed. According to them, the said document named as settlement deed was executed by mother of plaintiff and her brother in favour of wife of plaintiff’s brother. So as to mark the document, they filed interlocutory applications to recall D.W.3 and to receive additional documents. When the applications were dismissed, they filed CRP Nos.1172 and 1173 of 2009. These were allowed by this Court on 07.7.2009, permitting recall of D.W.3 and marking of documents. This Court also observed that it shall be open to plaintiff to cross-examine D.W.3. Thereafter, it appears that D.W.3 was recalled and was cross- examined by petitioner’s counsel and settlement deed was marked. The matter was then coming up for arguments. At that stage, petitioner filed I.A.No.1849 of 2009 to reopen the plaintiff’s side evidence to lead rebuttal evidence. By impugned order dated 07.9.2009, the Court below dismissed I.A. placing reliance on Vinayak Shastry v Dhondu Shastry[1]. This Court heard learned Counsel for petitioner, who submits that if there is no delay on the part of the party, the Court can recall any witness enabling him to adduce rebuttal evidence. He placed reliance o n Salem Advocate Bar Association v Union of India[2] and M/s.Punjab Steel Corporation v MSTC Ltd[3]. Per contra, learned Counsel for respondents relies on Vinayak Shastry (supra) and submits that when D.W.3 was recalled and cross-examined, plaintiff did not obtain specific permission from the Court reserving right to lead rebuttal evidence, and therefore, the right to lead rebuttal evidence under Order XVIII Rule 3 of Code of Civil Procedure, 1908, is not available to plaintiff. There is no dispute that petitioner specifically did not have right nor sought permission of the Court when D.W.3 was recalled pursuant to order in earlier CRPs. In such circumstances, as held by this Court i n Vinayak Shastry (supra), the plaintiff cannot be permitted to lead rebuttal evidence, long after closure of evidence on both sides. In the above mentioned case, it is held as follows. It is true that Order XVIII Rule 17 CPC confers power on the Court to recall and examine a witness at any stage of the suit and put such questions to him as the Court thinks fit. This power is, however, subject to the law of evidence for the time being in force. In the decision reported in Smt.M.M. Amokar v Dr.S.A.Hohari, AIR 1984 SC 931, the Supreme Court held that this power should be exercised only in exceptional circumstances. I find no such circumstances in this case. In Nalajala Narasayya v Nalajala Seethayya and others, 1991(3) ALT 285, a Division Bench of this Court held that the option to reserve the right of rebuttal evidence under Order XVIII Rule 3 CPC should be exercised before the other party begins his evidence and an application made in this behalf long after close of evidence and when the case is posted for arguments, cannot be entertained and rebuttal evidence cannot be permitted at such a belated stage. Learned Counsel for petitioner/plaintiff also relied on Nalajala Narasayya v Nalajala Seethayya[4], wherein it was held that the right of reservation to produce evidence in rebuttal under Order XVIII Rule 3 of CPC 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. Applying the same principle, this Court is convinced that plaintiff cannot be permitted to reopen the case with reference to settlement deed produced through D.W.3. The civil revision petition is misconceived and is accordingly dismissed. _______________ (V.V.S.RAO,J) November 27, 2009 YS [1] 2000(2) ALD 750 [2] (2005) 6 SCC 344 [3] AIR 2001 P&H 331 [4] AIR 1992 AP 97: 1991(3) ALT 285