ORDER
1. These two civil revision
petitions can be disposed of by a common order since they arise out of two interlocutory applications filed in the same suit. The petitioners are the defendants in the suit. The respondent herein who is no other than the father of the first petitioner filed the suit for declaration of title and for recovery of possession of the suit properties after ejecting the defendants there-from. The suit properties admittedly belonged to Durga Narayana, the deceased brother of the respondent-Plaintiff. The respondent filed the suit claiming the properties as the legal heir of Durga Narayana. The petitioners are resisting the suit relying-upon two Wills alleged to have been executed by Durga Narayana, during his life time. As the burden of proving the alleged Wills was on the defendants, they commenced their evidence in the first instance. After examining six witnesses on their side, their evidence was closed on 24-2-1999. Thereafter, the evidence on the side of the plaintiff was commenced on 23-6-1999 and after examining two witnesses on his side, the evidence on the plaintiff’s side was closed on 25-11-1999 and the suit is posted
for arguments. After the closure of the evidence on their side and after the commencement of the examination of the first witness of the plaintiff, the defendants filed IA No.SOl of 1999 to receive certain documents which were field along with the said application in evidence after condoning the delay in filing the same. The said application was ordered on 11-11-1999. On 16-12-1999 when the suit came up for arguments, the defendants filed two interlocutory applications viz., IA No.976 of 1999 under Order 18, Rule 17 CPC to recall DW1 for further examination and IA No.977 of 1999 under Order 13, Rule 2 CPC to receive and admit the documents filed along with the said application in the evidence. By the impugned orders, the lower Court dismissed both the said applications on the ground that the applications are belated and the defendants have no right to adduce any further evidence by way of rebuttal as they made no reservation in that behalf as per Order 18, Rule 3 CPC.
2. The learned Counsel appearing for the petitioners-defendants sought to assail the impugned order by contending that mere delay in filing the applications is not a valid ground for shuttingout valuable evidence and that under Order 18, Rule 17 CPC, the Court has ample power to permit the examination of any witness at any time even in the absence of any reservation made under Order 18, Rule 3 CPC.
3. On the other hand, the learned Counsel appearing for the respondent has contended that in the absence of any express reservation made by the defendants reserving their right to adduce rebuttal evidence as envisaged under Order 18, Rule 3 CPC, the defendants have no right at all to adduce any rebuttal evidence at this belated stage and that the lower Court has properly exercised its discretion in dismissing the applications and there are absolutely no valid grounds whatsoever to interfere with the same in revision.
4. From the material available on record it is seen that the suit was filed on 18-1-1994. The written statement was filed on 23-8-1994 and issues were settled on 20-10-1994. The defendants commenced their evidence on 26-6-1998 and the evidence on their side was closed on 24-2-1999 after examining six witnesses. The plaintiffs evidence was commenced on 26-3-1999. The examination of PW1 lasted till 13-10-1999 on which date his evidence was closed. PW2 was examined on 17-11-1999. The evidence on the plaintiffs side was closed on 25-11-1999 and the suit was posted for arguments to 16-12-1999. It is true that Order 18, Rule 17 CPC confers power on the Court to recall and examine a witness at any stage of the suit and put such questions to him as the Court thinks fit. This power is, however, subject to the law of evidence for the time being in force. In the decision reported in Smt. M.M. Amokar v. Dr. S.A. Hohari, , the Supreme Court held that this power should be exercised only in exceptional circumstances. I find no such circumstances in this case. In Nalajala Narasayya v. Nalajala Seethayya and others, , a Division Bench of this Court held that the option to reserve the right of rebuttal evidence under Order 18, Rule 3 CPC should be exercised before the other party begins his evidence and an application made in this behalf long after close of evidence and when the case is posted for arguments, cannot be entertained and rebuttal evidence cannot be permitted at such a belated stage.
5. In view of this settled legal position, I do not find any valid grounds, whatsoever, to interfere with the discretion exercised by the lower Court in dismissing the applications filed by the defendants.
I do not, therefore, find any merit in the CRPs. and they are accordingly dismissed but without costs. The interim stay stands vacated.