2025:HHC:32528 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 118 of 2023 Decided on: 18.09.2025 Raj Kumar … Petitioner Versus Sita Ram and others .… Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes ___________________________________________________________________ For the petitioner : Mr. Naresh K. Sharma, Advocate. For the respondent : M/s Vinod Chauhan and Nandita, Advocates for respondents No. 1 and 2. : Notice not issued to other respondents. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioner has assailed the order passed by learned Trial Court dated 09.03.2023, in terms whereof, the learned Trial Court has ordered that the case be listed for rebuttal and arguments on 25.03.2023. The impugned order reads as under:- “Statement of DW-2 recorded. DWs closed vide separate statement of ld. Counsel for defendant No. 2. Be listed for rebuttal and arguments on 25.03.2023.” 2. Learned Counsel for the petitioner argued that the impugned order is per se bad for the reason that in view of the fact 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:32528 that no right of rebuttal was reserved by the plaintiff at the time when evidence of the plaintiff was closed by the Court, no right was conferred upon the learned Trial Court to grant this right to the plaintiff, as has been done in terms of the impugned order. Accordingly, he prayed that the impugned order be set aside and learned Trial Court be directed to hear the arguments in the case. 3. On the other hand, learned Counsel for the respondents submits that as in the present case, the evidence of the plaintiff was closed by Court order, therefore, there was no occasion for the plaintiff to reserve the right of rebuttal. Accordingly, he submitted that as there is no infirmity in the order passed by the learned Trial Court, present petition be dismissed. 4. I have heard learned Counsel for the parties and have also carefully gone through the impugned order as well as other documents appended with the petition. 5. A perusal of the documents appended with the petition demonstrates that the Issues in the case were framed on 13.10.2017. Thereafter, an opportunity was granted to the plaintiff to lead evidence and ultimately, when the case was listed on 05.09.2022, the following order was passed by the learned Trial Court:- “Taken up today for effective hearing. Ld. counsel for plaintiff 3 2025:HHC:32528 has stated that he is directed by his counsel to give up the present witness, therefore, he give up PW Ram Pal vide separate statement. Record perused. Perusal of the case file shows that sufficient opportunities have already been granted to the plaintiff for examining PWs, but plaintiffs have failed to examine all witnesses in evidence. Therefore, evidence of the plaintiffs is closed by Court orders. Be listed for DWs on 27.09.2022, Steps, if any be taken within 5 days.” 6. A perusal of the order dated 05.09.2022 demonstrates that neither the plaintiff closed his evidence in affirmative nor any right was reserved to lead rebuttal evidence. 7. This Court does not concur with the contention of learned Counsel for the respondent that because the evidence of the plaintiff was closed by the Court order, therefore, no opportunity was there to reserve the right of rebuttal as far as the plaintiff is concerned. Because on the date concerned, the plaintiff was being duly represented by a lawyer, he could have always made a statement that the right of the plaintiff to lead rebuttal evidence be reserved. This is more so for the reason that when order dated 05.09.2022 was passed, the evidence of the plaintiff was being recorded which obviously was being recorded after framing of the Issues and of course, post framing of the Issues, both the parties 4 2025:HHC:32528 knew that onus to prove which particular Issue is upon which party. 8. Order 18, Rule 3 of the Code of Civil Procedure reads as under:- “Order 18 Rule 3. Evidence where several issues— 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. [3A. Party to appear before other witnesses— Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded permits him to appear as his own witness at a later stage.]” 9. This Court in CMPMO No. 467 of 2010, titled as Neelam Rai vs. Surjit Kumar and others, decided on 10.03.2011, while interpreting Order 18, Rule 3 of the Code of Civil Procedure, has held as under:- 5 2025:HHC:32528 “It would be pertinent to deal with the phrase relied upon by the respondent that the “party beginning will be entitled to reply generally on the whole case.” In case Order 18, Rule 3 of the CPC is read as a whole, it is obvious that when several issues are framed normally it would be the plaintiff who would led evidence if onus to prove certain factual issues has been placed on the plaintiff. Therefore, instead of the word ‘party beginning’ I am reading in this sub rule the word ‘plaintiff’ and instead of the word ‘other party’, the word ‘defendant’. Therefore, where there are several issues, onus to prove some of 10 which is on the plaintiffs and of some on the defendants and the plaintiff leads evidence only on the issues, the onus to prove which is on him, then he can reserve his right to lead rebuttal evidence on the issues, onus to prove which is on the defendant. Thereafter, the defendant would be required to lead evidence on all issues and then the plaintiff would have the right to lead evidence in rebuttal only on those issues, the onus to prove which was on the defendant. This is obvious from the words used in this rule that in the latter case the party beginning may produce evidence on those issues after the other party has produced its own evidence. It is only when the defendant is again given a right to lead evidence either by way of additional evidence or otherwise, i.e., in case of a counter claim to lead further 6 2025:HHC:32528 evidence that the plaintiff would get a right to lead rebuttal evidence again and it is only in this eventuality that the plaintiff can reply generally on the whole case. In view of the above discussion, the order of learned trial Court is patently erroneous and is accordingly set aside. The plaintiffs cannot in any circumstances be permitted to lead rebuttal evidence on issues No.1 to 3. Issue No.4 has not been pressed and evidence cannot be led on this issue. As far as issue Nos.5 and 6 are concerned, they appear to be formal issues. However I am purposely not expressing any opinion on this question in view of the order which I intend to pass.” 10. Thereafter, in CMPMO No. 70 of 2024, titled as Prem Singh Thakur vs. Life Insurance Corporation of India and others and other connected matter, decided on 11.08.2025, this Court held as under:- “5. I have heard learned Counsel for the parties and have also carefully gone through the impugned orders in both the cases as well as documents appended by the parties on record. 6. Order XVIII of the Civil Procedure Code provides for hearing of the suit and examination of the cases. Order XVIII, Rule 1 of the Civil Procedure provides that plaintiff has the right to begin unless the defendant admits the facts alleged 7 2025:HHC:32528 by the plaintiff and contents that either in point of law or on some additional facts alleged 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. 7. Order XVIII, Rule 3 of the Civil Procedure Code provides that where there are several issues, the burden of proving some of which lies on the other 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. 8. Thus, it is evident from above quoted provisions that where the plaintiff begins the evidence and there are certain issues, onus to prove which is on the defendant, then the plaintiff has to reserve the right to lead the rebuttal evidence and in the absence of any such right being reserved by the plaintiff, obviously, such a party cannot thereafter claim the right to lead rebuttal evidence once the defendant closes his evidence. 9. Reverting to the facts of this case, it is an admitted position 8 2025:HHC:32528 that when the plaintiffs closed their evidence they did not close so in affirmative and no right to lead rebuttal evidence was reserved despite the fact that they knew pretty well that there were certain issues, onus to prove which was upon the defendants. 10. In light of this fact, the contention of learned Senior Counsel for the petitioners that the learned Trial Court erred in not granting the right to lead rebuttal evidence to the plaintiffs is not sustainable in law. 11. In light of the provisions of Order XVIII, Rule 3 of the Civil Procedure Code, as the onus was upon the plaintiffs to reserve their right in affirmative at the time of closure of their evidence or reserve their right to lead evidence in rebuttal, in the absence of the plaintiffs reserving any such right, it cannot be said that the learned Trial Court erred in refusing the right to lead rebuttal evidence to the petitioners herein.” 11. Thus, it is apparent and evident that whenever issues are framed and onus to prove one or more Issue is upon the defendant, then the plaintiff has to reserve the right to lead rebuttal evidence at the time when the evidence of the plaintiff is being closed. In the absence of the said right being reserved by the plaintiff at the relevant time, no such right can be subsequently conferred upon the plaintiff. This extremely important aspect of the matter has been ignored by the learned Trial Court while passing the impugned 9 2025:HHC:32528 order. Therefore, as the impugned order is per se bad and not sustainable in the eyes of law, this petition is allowed and order dated 09.03.2023 is quashed and set aside to the extent it grants the right of rebuttal to the plaintiff and rest of the order remains the same. Learned Trial Court is directed to hear the case finally on the basis of pleadings and evidence which is on record. Pending miscellaneous application(s), if any, also stand disposed of accordingly. (Ajay Mohan Goel) Judge September 18, 2025 (narender)