// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.6345/2007 Shri Sita Ram (since deceased) through his LRs Sridevi and Others Versus Narottam S/o Shri Vishwanath Date of Order ::: 07.07.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri B.L. Mandhana, Counsel for petitioners Shri Anil Sharma, Counsel for respondent #### By the Court:- Admit. On the request of the learned counsel for the parties, the writ petition is heard on merits and is being disposed of. Plaintiff-respondent filed a suit for permanent injunction and damages against the defendants-petitioners in the trial court in respect of disputed property, which was decreed by the trial court vide judgment and decree dated 4th August, 1997. However, on an appeal filed by the defendants, the first appellate court, vide its judgment and decree dated 17th April, 1998 remanded the matter to the trial court after framing four additional issues. The burden to prove all the additional issues was on the defendants. During the pendency of the suit, // 2 // the plaintiff filed an application under Order 18 Rules 2 and 3 CPC to allow the plaintiff to lead its evidence in rebuttal. The trial court allowed the said application vide order dated 2nd August, 2007. The said order is under challenge in the present writ petition filed on behalf of the defendants. The learned counsel for the petitioners contended that it was a duty of the plaintiff to reserve its right for rebuttal and in absence of such right the trial court could not have allowed him to lead his evidence in rebuttal, therefore, the impugned order is contrary to law and it is liable to be set-aside. The learned counsel for the respondent contended that the learned trial court has exercised its discretion in allowing the present application and has rightly allowed the plaintiff to lead his evidence in rebuttal on all the four additional issues, which have been remitted by the first appellate court for disposal. He, therefore, contended that there is no merit in this writ petition and the same may be dismissed. I have considered the submissions of learned counsel for the parties and examined the impugned order passed by the trial court as well as other documents annexed with the writ // 3 // petition. The suit of the plaintiff-respondent was earlier decreed by the trial court on 4th August, 1997. However, the first appellate court, while deciding the appeal on 17th April, 1998 filed by defendants, framed four additional issues and remitted the matter to the trial court for deciding the suit afresh. The matter was fixed for defendants' evidence. The trial court, vide its order, has observed that on 4th January, 2007, the plaintiff and defendants both were present-in-person as their respective counsel were not present and on that date the defendants' evidence was closed and case was fixed for final arguments. The trial court further observed that the burden to prove additional issues was on the defendants, therefore, after closure of the evidence the case ought to have been fixed for plaintiff's evidence in rebuttal whereas the case was fixed for final arguments. After considering the reasons assigned by the learned trial court for allowing the application of the plaintiff, I find it in the interest of justice to grant one opportunity to the plaintiff to lead his evidence in rebuttal in respect of these additional issues. The learned trial court has exercised its // 4 // jurisdiction in favour of the plaintiff while allowing the application under Order 18 Rules 2 and 3 CPC. I do not find any illegality, perversity or jurisdictional error in the said order so as to interfere with the same. There is no merit in this writ petition and the same is accordingly dismissed. There will be no order as to costs. (Narendra Kumar Jain) J. //Jaiman//