1 wp581.11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 581 of 2011 Smt. Laxmi Vijaysinh Padode & anr. ... Petitioner v/s. Smt. Hirabai Sitaram Shelar & ors. ... Respondents Mr. R.V. Patil with B.R. Pai for the petitioners. CORAM:- B.R. GAVAI, J DATED :- MARCH 21, 2011. P.C. By way of present petition, the petitioner challenges the order dated 16th December, 2010 vide which the application filed by the present petitioner under Order 18 Rule 3 read with Section 151 of the CPC is rejected. 2. The plaintiff has filed the suit for declaration and permanent injunction. After the issues were framed, the trial proceeded. From the issues it could be seen that the burden to prove issue nos. 4 and 5 lies on the defendant. After the defendants adduced their evidence and filed 2 wp581.11.sxw closure pursis, the plaintiffs filed an application submitting therein that they want to lead evidence in rebuttal. The said application is rejected. Hence, the present petition. 3. Shri Pai, the learned Counsel appearing on behalf of the petitioner submits that in view of Rule 3 of Order 18, an application for getting evidence in rebuttal could be filed at any stage. The learned Counsel relies on the Judgment of the Division Bench of Andhra Pradesh High Court in the case of Nalajala Narasayya vs. Nalajala Sitayya & ors. reported in AIR 1992 A.P. 97 and Division Bench of this Court in the case of Shantibai K. Vardhan & ors. v/s. Meera G. Patel & anr. reported in 2008 (6) Mh. L.J. 4. The learned trial Judge rejected the application on the ground that the application filed by the petitioner-plaintiff has not given details regarding the names of the witnesses, they would like to examine. The trial Judge has further found that insofar as issue nos. 1, 2 and 3 are concerned, the burden lay on the plaintiff to prove the same. The learned trial Judge has found that the plaintiff has adduced her evidence and also relied on various sale deeds in support of her case. It has been found that defence of the 3 wp581.11.sxw defendants is that the sale deeds were bogus and as such the issue nos. 4 and 5 put the burden on defendants to establish the same. The learned trial Court has further found that the pursis filed by the plaintiff does not reflect that they desire to reserve their right to rebut the evidence of the defendants. On the contrary the learned trial Judge has found that perusal of pursis would reveal that the plaintiffs have closed their evidence. 5. Insofar as the Judgment of the Division Bench of the Andhra Pradesh High Court is concerned, no doubt that the learned Judges of the Division Bench held that the right to lead evidence in rebuttal can be reserved not only expressly but also by necessary implication. However, the Division Bench in Paragraph 8 after considering the various judgments have clearly held that the last stage for exercising the option to reserve the right of rebuttal would be before the other party begins its evidence. Admittedly, neither expressly nor by necessary implication, the plaintiffs have done anything to show that they have reserved their right to lead evidence in rebuttal. 6. Insofar as the Judgment of the Division Bench of this Court in the case of Shantibai(supra) is concerned, no doubt that procedural law is 4 wp581.11.sxw handmade of justice. However, the procedure prescribed by the statute cannot be given a total go bye to the prejudice of the other party. 7. In that view of the matter, no perversity is noticed in the approach adopted by the learned trial Court to warrant interference. Rejected. (B.R. GAVAI, J)