Introduction

Order 18 of Code of Civil Procedure (CPC) deals with the hearing of the suit and the examination of witnesses. Order 18 R.1 deals with right to begin i.e. the plaintiff has right to begin unless the defendant admits the facts alleged by the plaintiff. Order 18 Rule 2 deals with statement and production of evidence i.e. on the date fixed for hearing of the suit, a party having the right to begin is to state his case and to produce his evidence in support of the issues which he is bound to produce. It is thereafter that the other party is to state his case and produce his evidence

Stage for Exercising the Option to Reserve the Right of Rebuttal:

Order 18 Rule 3 of CPC says that where there are several issues, the burden of proving some of which lies on the 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 specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.

The above said rule lays down the procedure as to how the evidence has to be adduced whenever the burden of proof on some issues is on one party and on other issues on the opposite party. As to who is entitled to begin, Order 18, R. 1 states that the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either on the point of law or on some additional facts urged by the defendant, the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.

Order 18, R. 3, however, does not mention in what manner the option, either to adduce evidence or to reserve, has to be exercised by a party or as to when such a reservation is to be made. Questions have naturally arisen before the Courts on these matters of procedure. In several cases, it has been held that the option has to be exercised by the party intending to begin, at the time when he commences the evidence on his side. In some other cases, it has been held that he should exercise the said option after closure of the evidence on his side and before the opposite party begins his evidence.

Hon’ble Rajasthan High Court in Inderjeet Singh v. Maharaj Raghunath Singh , has also taken the same view. It was held that the rule does not prescribe the stage at which the Court should be informed about the exercise of the option therein. It is sufficient if the party leading evidence does so (provided it has not led any evidence on the issue covered by the option/on which it wants to give rebuttal evidence) before the other party begins its evidence.

Manner of Reserving Right of Rebuttal:

Coming to the manner of the exercise of the option, in some cases it has been held that there should be express reservation of the right to adduce rebuttal evidence and in some other cases it has been held that it need not be expressly reserved and that the reservation could be implied from the facts and circumstances of the case. There can be no difficulty in cases where the right of rebuttal is exercised expressly by the party who begins, either at the beginning of his evidence on his side, or, at any rate, when he closes the evidence and before the opposite party starts evidence on its side. This is done by writing in the order sheet of the case that the party reserves his right to rebuttal on such and such issues.

The difficulty, however, arises in cases where there is no such express reservation. In a case where the party had not adduced any evidence on a particular issue, the mere fact that specific reservation is not made is not fatal, unless there is anything in the record either expressly or impliedly to hold that he lost his right to adduce evidence. There could be a situation where the party who adduced the evidence in the first instance exercised his right to begin his case and did not adduce any evidence on the particular issue and the party on whom the burden lay also did not adduce evidence on that issue and in such a situation there would be no evidence at all on the issue. Moreover, there was no warrant to hold that in the absence of any specific written memorandum filed into Court reserving such right to adduce rebuttal evidence, the party must be deemed to have forfeited its right to adduce evidence in the absence of any other material on record. When nothing is disclosed in the record to show that he had forfeited his right, the mere omission to specifically reserve the right by filing a written application into Court would not destroy his right to adduce such rebuttal evidence.

The plaintiff, who apparently had the right to begin, had not completed their evidence both in affirmative and in rebuttal. The plaintiff’s counsel made a statement that he was closing his case in affirmative only. At a later stage when the plaintiff wished to lead evidence in rebuttal, an application was preferred on behalf of the defendant therein stating that the plaintiff should be disallowed from doing so because the option to reserve the right of rebuttal had not been expressly exercised at the very outset. The trial Court rejected the said application holding that the statement given by the plaintiff’s counsel that he was closing the evidence in the affirmative had implicit therein that the right of rebuttal stood reserved. In that case, no memorandum or anything in writing was filed into Court to show that the plaintiff had expressly reserved the right of rebuttal. Even so, the trial Court held reservation could be implied. The said view was affirmed by the Division Bench and, in that context, the provisions of Order 18, R. 3 were examined and a reference was made to various decisions and also to Order 16 R. 1, CPC. The Court initially held that the reservation could be made by the party beginning the evidence at any stage before the opposite party already started its evidence. The Court then considered the question whether it could be said that there was any reservation by implication. If, however, there is no express reservation, nor any such reservation which could be implied from the facts and circumstances of the case, the party would not be entitled to adduce rebuttal evidence.

Conclusion

On the basis of above discussion it is clear that the reservation of the right to adduce rebuttal evidence need not always be express but it can also be implied from the facts and circumstances of the case. Implied reservation can said to be in those cases where the party closes its evidence in affirmative only (meaning closing evidence on those issues the burden to prove which lied on him). So the reservation of the right of adducing rebuttal evidence need not be express and need not always be by way of a memo filed on behalf of the party who has begun the evidence on his side.

(Seedling School of Law and Governance)