THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.R.P.NO.3087 OF 2010 O R D E R Heard both the counsel. 2. Aggrieved by the docket order dated 29.6.2010 passed by the court of Senior Civil Judge at Jagtial, in taking notice of the memo filed by the plaintiffs in reserving their right to lead rebuttal evidence on issues 1 to 4, 6 to 9 after the closure of the evidence of defendants, the present revision is filed by the defendants. 3. The plaintiffs filed the suit for partition and separate possession. It is necessary to note the relationship between the parties. The plaintiffs are the sisters and the 1st defendant is the widow of their deceased brother and the second defendant is the purchaser of the part of the suit schedule property. 4. The case of the plaintiffs is that the suit schedule property is the self acquired property of their father late Gummala Narsaiah, who died eighteen years prior to the filing of the suit and their brother Gummala Gangaram died issueless leaving behind him his wife, who is the defendant no.1; that they were in joint possession of the suit schedule property in three equal shares and that when they demanded for partition, the 1st defendant did not co- operate for partition and that 1st defendant and one Gummula Raja Sekhar sold the property to defendant no.2 and that the same is not binding on them. With these averments, inter alia, the suit was filed for partition and separate possession. 5. The case of the defendants is that during the life time of the husband of the 1st defendant, the 2nd defendant entered into an agreement of sale with him and paid the entire consideration and that after his death, the 1st defendant and his adopted son executed a registered sale deed and that he is the bona fide purchaser and that the adoptive son of the deceased Ganagram is not made party. With these averments, the suit was sought to be dismissed. 6. Based on the material on record, the trial court farmed the following issues for trial: 1. Whether the defendant and here husband (late) Gangaram have adopted one Rajashekar? 2. Whether the said Raj Shekar is proper and necessary party to the present suit and whether the suit is bad for non joinder of said Rajashekar as party to the suit. 3. Whether there was any partition between the plaintiffs and the brother Gangaram, during his life time? 4. Whether the plaintiffs have disposed their share? 5. Whether the plaintiffs are in joint possession of suit properties along with the defendant? 6. Whether the husband of the defendant has sold the share to one Md. Abdul Aleem and entered into an agreement with him? 7. Whether the defendant has executed an unregistered sale deed in favour of said Aleem and put him in possession of the suit land? 8. Whether the suit is bad for non-joinder of necessary parties? 9. Whether the plaintiffs are entitled to a share in the suit properties? 10. To what relief? Additional Issues: 1. Whether the defendant no.2 purchased plaint schedule property from the defendant no.1 through simple sale deed on 28.2.2006? 2. Whether the registered sale deed dated 6-3-2007 executed by the defendant no.1 in favour of defendant no.2 is true, valid and binding on the plaintiffs? 7. In support of the case of the plaintiffs, P.W.1 was examined and from the record, it could be seen that after the examination of P.W.1, the plaintiffs filed the present memo reserving their right to lead rebuttal evidence after the closure of the evidence of the defendants. Aggrieved by the same, the present revision is filed. 8. The learned counsel for the petitioners contended that the plaintiffs filed the suit for partition and the burden is on them to prove their case and without noticing this aspect, the court below erroneously allowed the plaintiffs to reserve their right to lead rebuttal evidence after the closure of the evidence of the defendants. The learned counsel contended that under Rule 59 of the Civil Rules of Practice and Circular Orders, every interlocutory application shall be supported by an affidavit and in the present case, only a memo is filed and taking the same into consideration, without giving opportunity to the defendants to file counter and without hearing the parties, the trial court allowed the memo and the same is contrary to Rule 59. Hence, he sought to set aside the impugned docket order. 9. On the other hand, the learned counsel for the respondents submitted that it is true that if an interlocutory application is filed, it shall be supported by an affidavit and the relevant documents, which are intended to be relied upon and the same shall be served on the opposite party and then the court has to be pass an order after giving opportunity to the opposite party. But there is any amount of difference between a memo and an interlocutory application and under the memo, no new fact is sought to be brought on record and the facts and circumstances, which are already existing on record, are brought to the notice of the court and having regard to the nature of the suit and the issues framed, the plaintiffs sought to reserve their right to lead rebuttal evidence after the closure of the evidence of the defendants and in fact, Rule 3 of Order 18 of C.P.C. permits such a procedure. He contended that there is no error of law and illegality manifest on the face of the record and the revision itself is not maintainable. With these averments and supporting the impugned docket order, the learned counsel for the respondents sought to dismiss the revision. 10. From the material on record, it could be seen that the suit is filed for partition and the case of the plaintiffs is that their brother, who is the husband of the 1st defendant died issueless and they are in joint possession of the suit schedule property and that the 1st defendant along with one Rajsekhar sold away the property to the 2nd defendant and that the sale is not binding on them and as the 1st defendant did not co-operate for partition, they field the suit. On the other hand, the case of the defendants is that the 1st defendant along with his adoptive son sold away the property and that even during the life time of the husband of the 1st defendant, the 2nd defendant entered into an agreement of sale and after his death, the 1st defendant executed a simple sale deed and put him in possession and subsequently, the 1st defendant and her adoptive son executed registered sale deed in favaour of the 2nd defendant. 11. In the light of the respective averments, as per the issues framed, which are extracted above, on certain issues t he burden lies on the plaintiffs and on certain issues the burden lies on the defendants. Therefore, having regard to the nature of the suit, which is for partition, the plaintiffs reserved their right to lead rebuttal evidence. At this juncture it is necessary to note Rule 3 of Order 18 of C.P.C., which is as under: 3. 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 specifically on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case. 12. From the above provision it is clear that where there are several issues and the burden of proving some of them lies on the on the other party, the party beginning may reserve his right to produce evidence by way of answer to the evidence produced by t he other party. Therefore, as per Order 18, Rule 3 of C.P.C., the plaintiffs sought to reserve their right to lead evidence by way of answer to the evidence to be produced by t he defendants. Considering the nature of the suit and the issues framed, the court below, in exercise of its discretionary jurisdiction, passed the impugned docket order, on the memo filed by the plaintiffs reserving their right to lead rebuttal evidence on issues 1 to 4, 6 to 9. Hence, I do not find any error of law or any illegality in the impugned order. 13. With regard to the contention of the petitioners that the respondents did not file any affidavit in support of the petition as contemplated under Rule 59 of the Civil Rules of Practice and Circular Orders is concerned, as rightly contended by the counsel for the respondents, in the present case, no interlocutory application is filed and hence filing of an affidavit is not required and only the facts and circumstances already existing on record were brought to the notice of the court, for reserving liberty to lead rebuttal evidence and the court rightly took the said notice into consideration and passed the docket order. I am of the considered view that no affidavit needs to be filed and the contention of the counsel for the petitioner in this regard, cannot be accepted. 14. For the foregoing reasons, I do not find any merit in the revision and the same is dismissed. No costs. AVS ----------------------------- --------- 08—12— 2011