1 W.P.No.8356 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.8356 OF 2009 Shahnawazkhan s/o Abdul Raihmankhan Age 40 years, Occupation Business, R/o Jinsi, Aurangabad District Aurangabad .. PETITIONER (Orig.Plaintiff) VERSUS 1. Smt.Azarunnisa Begum w/o Mohd. Abdul Rauf, Age 69 years, Occupation Household, R/o H.No.1-27-33 by the side of house of Sk.Idris Sk. Hyder, in front of Shalimar Bakery, Manzoorpura, Aurangabad 2. Syed Sameer s/o Syed Salim, Age 29 years, Occu.Business, R/o Kabadipura, Buddhilane, Aurangabad 3. Syed Shakil s/o Syed Salim, Age 26 years, Occu.Business, R/o Kabadipura, Buddhilane, Aurangabad .. RESPONDENTS (Orig. Defendants) Mr P.F.Patni, Advocate for petitioner Mr A.D.Kasliwal, Advocate for respondents No.2 and 3 Respondent No.2 served by paper publication CORAM : MRS MRIDULA BHATKAR, J. DATE : 11th October, 2011 ORAL JUDGMENT 1. Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties, this petition is heard finally at the stage of admission. 2 W.P.No.8356 of 2009 2. By this petition, the petitioner challenges the order dated 16.11.2009 passed by the learned 5th Joint Civil Judge, Senior Division, Aurangabad below Exh.49 in Special Civil Suit No.265 of 2008. The original plaintiff, i.e. the petitioner has filed suit for specific performance against respondents. Plaintiff had entered into an agreement of sale in respect of a land on 10.11.2006. The consideration amount for the entire land was fixed at Rs.37 lacs and amount of Rs.5 lacs was paid towards the earnest money. As per the case of the petitioner, respondent No.1 sold this land to respondents 2 and 3 hence, suit for specific performance was filed. Respondent No.1 in the written statement while denying the case of the plaintiff contended that the amount of Rs.5 lacs was given as a loan and agreement of sale was entered as a security document and it was not a sale transaction. Learned trial Judge framed issues on 7.10.2008 at Exh.13. In issues 1, 2, 4 and 5 the burden was passed on the plaintiff and in issue No.3 defendant No.1 was required to prove that he approached the plaintiff for a hand loan of Rs.5 lacs and agreement of sale dated 10.11.2006 was a security document against the loan, as contended. Thus, while framing issue No.3, the burden of proving of the facts mentioned in issue No.3 was put on defendant No.1. 3. After framing of the issues plaintiff i.e. the petitioner tendered his evidence. After the cross-examination of the plaintiff an application at Exh.49 was moved by the plaintiff under Order 18 Rule 3 of the Code of Civil Procedure, thereby reserving his right to produce 3 W.P.No.8356 of 2009 the evidence by way of rebuttal in respect of issue No.3, if required. Respondent Nos.2 and 3 filed reply opposing the said application. After hearing the parties trial Court rejected the said application on the ground that it is not a proper stage to file such application under Order 18, Rule 3 of the Code of Civil Procedure. 4. Learned Counsel for the petitioner submits that Order 18 Rule 3 of the Code of Civil Procedure is silent about the stage at which such application can be moved by the party, who begins. In the present case plaintiff has filed the suit for specific performance and plaintiff has begun the evidence and, therefore, after his cross-examination he moved the application that he has right to answer and rebut the evidence tendered by the defendants in respect of issue No.3. In support of his submissions, he relied on Prem Sagar Gupta (deceased by LR’s) Vs. Smt.Kamlesh Kumari and another, reported in AIR 2004 DELHI 136 and secondly, Nalajala Narasayya Vs. Nalajala Sitayya and others, reported in AIR 1992 ANDHRA PRADESH 97. 5. Learned Counsel for the respondents in reply submitted that it is the suit for specific performance, where the trial Court has given the finding on the application moved by the plaintiff in respect of the burden on the parties. Therefore, the order cannot be challenged under Article 227 of the Constitution. He further submitted that plaintiff was aware of the issue No.3 and on whom the burden of 4 W.P.No.8356 of 2009 proving the issue No.3 was. So, plaintiff ought to have moved this application in the beginning when he adduced his evidence in affidavit- in-chief. Learned Counsel submitted that trial Court has rightly rejected the said application, as the application was moved at a late stage and if it would have been allowed, then it would have caused prejudice. 6. Heard Counsel. Gone through the application of the original plaintiff, reply filed by the respondents and order passed by the learned trial Judge, so also the rulings relied on by the Counsel. It is not disputed that the burden of issue No.3 is on the defendants, in view of the contentions raised and defence taken by the defendants in their written statement. Two options are available under Order 18, Rule 3 of the Code of Civil Procedure to a party, who begins while dealing with the issue of which the burden is on the other party. The party, who begins either can produce evidence on such issues or party, who begins, by way of answer to the evidence produced by the other party can reserve its right. Thus, if the plaintiff begins the evidence, then plaintiff can answer the issue where the burden is on the defendant by adducing evidence or alternatively, may not adduce evidence but can reserve his right to answer and rebut the evidence adduced by the other party. As argued by learned Counsel for the petitioner, this Rule is silent about at what stage such application is to be moved. When the trial goes on there are various stages of evidence. Plaintiff begins thereafter plaintiff closes his evidence, then 5 W.P.No.8356 of 2009 the defendant to start the evidence and to close the evidence. It is ideal if at all the plaintiff or party begins, moves an application for reserving its right to answer in respect of the evidence on such issue where the burden is on the opposite party. However, as no stage specifically mentioned, no bar plaintiff or the party to move such application at any stage during the evidence of either of the parties. However, it is appropriate that the plaintiff should move the application of reserving his right to answer and rebut the evidence of other party in respect of such issue before defendant enters the box or he puts witness in the box or at the time when plaintiff closes his or her evidence. It is necessary that the other party should be made aware before he or she steps int he box and adduce his or her evidence. This prior knowledge is required so that the prejudice should not be caused to the other party and accordingly, the other side can lead evidence keeping in mind that his evidence is going to be answered by the plaintiff who has reserved his right to rebut. One who asserts has to prove is a basic principle of the law of evidence. Accordingly, issues are framed. If burden to prove a particular fact is on a defendant or the other party, naturally a plaintiff or a party who begins will be in a position to answer such issue only after evidence is adduced by the defendant or the other party. That right to reserve the answer is recognised under Order 18, Rule 3 of the Code of Civil Procedure. 6 W.P.No.8356 of 2009 7. Reliance is placed by the plaintiff on the judgment of Supreme Court in Nalajala Narasayya Vs. Nalajala Sitayya and others, (supra). In this case, plaintiffs and defendants both closed their evidence on 6.8.1990 and the matter was posted for the arguments. Before the arguments commenced, in between but nearly after two months in the month of October plaintiff filed application under Section 151 of the Code of Civil Procedure invoking his right under Order 18 Rule 3 of the Code of Civil Procedure. In the said case, High Court of Andhra Pradesh has taken a view that the last stage of exercising the option under Order 18 Rule 3 of the Code of Civil Procedure can well be before the other party begins his or her evidence. Similar view is taken in Prem Sagar Gupta V. Smt.Kamlesh Kumari and another (supra). Thus, in view of the legal position under Order 18, Rule 3 of the Code of Civil Procedure and the issue framed by the trial Court and considering the stage of the evidence, the application moved by the plaintiff/petitioner ought to have been allowed by the trial Court. Therefore, the impugned order passed by the 5th Joint Civil Judge, Senior Division, Aurangabad is set aside. 8. Rule is thus made absolute on the above terms with no orders as to costs. ( MRS MRIDULA BHATKAR, J.) (vvr/8356.2009wp)