THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.R.P.NOS.3778 AND 4698 OF 2007 COMMON ORDER Heard both the counsel. 2. As both the matters are connected and parties are same, and also arise out of the suit in O.S.No.19 of 2003 on the file of Senior Civil Judge, Parchur, they are being disposed of by this common order. 3. The petitioner in both the revisions is the plaintiff in the suit in O.S.No.19/2003 filed for partition of the suit schedule properties. 4. The petitioner filed memo reserving his right to lead rebuttal evidence after the defendant’s evidence is completed. By docket order dated 14.6.2006 the court below held that there was no necessity to reserve the right of adducing rebuttal evidence. Aggrieved by the same, revision in C.R.P.No.4698 of 2007 is filed. 5. The petitioner filed interlocutory application in I.A.No.603/2007 in O.S.No.18/2003 under Section 151 of C.P.C. to reopen his evidence, who was examined as P.W.1, enabling him to adduce further evidence. By order dated 20.8.2007 the court below dismissed the said I.A. Challenging the same, C.R.P.No.3778 of 2007 is filed. 6. The petitioner filed the suit for partition of the suit schedule properties into two equal shares and for allotment of one such share to him. The defendants 1, 2 and 6 denied his claim stating that the mother of the petitioner executed a registered will bequeathing the suit schedule property in favour of the 6th respondent. The case of the petitioner is that his mother was unconscious for a period of ten months before her death and she was not in a sound and disposing state of mind and hence there was no possibility of executing a will. The petitioner was examined as P.W.1 and after the closure of his evidence, he filed memo reserving his right to lead rebuttal evidence. The evidence of defendants was closed and in order to rebut the evidence on the defendants on the will alleged to have been executed by his mother, he filed the I.A.No.603/2007 seeking permission to reopen his evidence and permit him to lead further evidence. 7. The respondents/defendants 1 to 3 and 6 filed counter and stated that the petitioner filed suit in O.S.No.95/2001 on the file of Principal Junior Civil Judge Court, Purchur against his mother i.e., Yerram Haumayamma, the testatrix of the will, and in the said suit, he did not whisper about her unconsciousness prior to her death and further in the said suit, his mother received suit summons and when the interlocutory application filed for injunction was dismissed, the petitioner has withdrawn the said suit. Stating that there are no merits in the I.A., sought for dismissal of the I.A. 8. In the memo filed for reserving right to lead rebuttal evidence, the court below passed the order dated 14.6.2006 stating that there was no necessity to reserve the right for adducing rebuttal evidence. By the impugned order dated 20.8.2007 the court below holding that as the petitioner in his evidence has categorically deposed in his cross-examination that except his oral evidence, he has no other documentary evidence to prove that his mother was seriously bedridden as unconscious for the last one year prior to her death and further that he was given sufficient opportunity to cross-examine the defendants on the aspect of will, he is not entitled to adduced any rebuttal evidence and accordingly dismissed the I.A. Hence, the present revisions. 9. The learned counsel appearing for the petitioner contended that under Order 18 Rule 3 of C.P.C., the petitioner has right to reserve his right to lead rebuttal evidence on the alleged will said to have been executed by his mother after the defendants close their evidence and for reserving the same, no separate memo is required to be filed. He stated that the court below is not justified in holding that there was no necessity to lead rebuttal evidence. The statement of the petitioner in his cross-examination that there was no documentary evidence with regard to the mental status of his mother prior to one year of her death, was on the date of the giving evidence and that when the petitioner specifically stated that he has oral evidence, the court below is not justified in holding that he is not entitled to lead rebuttal evidence and that there is no need to lead rebuttal evidence. He stated that the petitioner cannot be expected to state what evidence he is going to lead even before the respondents adduce their evidence. He contended that the court below failed to consider these aspect before rejecting the prayer of the petitioner for reserving his right to lead further evidence and hence the impugned order are liable to be set aside and the revisions be allowed. 10. On the other hand, the learned counsel for the respondents supporting the impugned orders sought for dismissal of the revisions. 11. There is no dispute that under Order 18, Rule 3 of C.P.C., when there are several issues, the burden of proving some of which lies on the other party, the party beginning can reserve his right to adduce rebuttal evidence in respect of those issues on which the burden of proof is on the opposite party. In the present case, the defendants 1 to 3 and 6 relied on a registered will and stated that the suit schedule property was bequeathed in favour of the 6th respondent and that the suit schedule property is not available for partition. In order to rebut the evidence to be lead on the will, the petitioner sought to reserve his right and as per Order 18, Rule 3 of C.P.C., he has right to seek such a relief, since his case is that his mother was unconscious for a period of ten months before her death and during the said period, she was not in a sound and disposing state of mind. But whether to grant such a relief or not, has to be examined by the court based on the facts and circumstances of the case. In the present as found by the court below, the petitioner, who was examined as P.W.1 has categorically deposed in his cross-examination that “It is true that except my oral evidence, there is no other documentary evidence to prove that my mother was seriously bed ridden as unconscious for the last one year prior to her death.” In view of this categorically evidence, the relief sought for by the petitioner to reopen his evidence and permit him to adduce further evidence on the alleged will, may not be necessary. Further, the court below found that he is given sufficient opportunity to cross-examine the defendants on the aspect of the will and he himself also filed a suit on the earlier occasion on the testatrix of the will. In these circumstances, I am of the view that the court below right held that there is no necessity to reserve the right of adducing rebuttal evidence and also dismissed the interlocutory application of the petitioner to reopen his evidence to lead further evidence. 12. In view of the above facts and circumstances, I do not find any merit in the revision petitions and both are dismissed. No costs. AVS -------------------------- 19—02—2010