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Report No. 144

7.2.2. Question to be considered.-

There is some controversy as to the exact stage at which the option allowed by the rule to the party beginning is to be exercised.

7.2.3. According to one view, the option must be exercised at the time, or before the time when the other side begins and enters upon his evidence. This view is taken by the following High Courts-

(a) Andhra Pradesh1; (plaintiff need not opt before beginning his evidence).

(b) Delhi;2

(c) Punjab and Haryana3; and

(d) Rajasthan.4

One can describe it as the liberal view.

1. Nookalamma v. Simhachalam, AIR 1969 AP 82 (83) (1971): 2 AP LJ 339 (Kondaiah, J.).

2. Kaviraj Ganpat Lal v. Om Prakash, (1975) 77 Punj LR (D) 10, referred to in AIR 1983 P&H 210.

3. Jaswant Kaur v. Devinder Singh, AIR 1983 P&H 210 (see infra).

4. Inderjeet Singh v. Raghunath Singh, AIR 1970 Raj 278.

7.2.4. According to another view, the option must be exercised when the party himself begins. This view is taken by the Madhya Pradesh High Court1.

1. Laxmi Narayan v. Baburam, AIR 1977 MP 191 (U.N. Bhachawat, J.) (see infra).

7.2.5. According to the Madhya Pradesh High Court1, the stage when the party begins must apprise the Court, is when that party begins. The court followed an unreported judgment of the same High Court (dated 23-10-1970) holding as under:

"The party beginning must elect at the time of beginning whether it will produce evidence on all the issues or only on those (issues) the burden of proving which rests on him and the reservation is allowed when the other party has closed his evidence. (This is how the earlier judgment of 1970 is quoted in the 1977 case)."

The Madhya Pradesh High Court dissents from the view of Andhra Pradesh, Mysore and Rajasthan on the subject. However, as the trial court had not examined whether the plaintiff had or had not led evidence on the issues, which he could have reserved, by properly exercising the option, the High Court remanded the case with the following direction:

"The trial court is directed to hear the parties and after considering the matter from the aspect whether the plaintiff had in fact led evidence on issues mentioned in para 2 above or not, decide the question of permitting the plaintiff to lead evidence in rebuttal of these issues."

1. Ibid., paras. 7 and 8.

7.2.6. The Madhya Pradesh judgment of 1977 (supra) has been expressly dissented from, by the High Court of Punjab and Haryana.1

1. Jaswant Kaur v. Devinder Singh, AIR 1983 P&H 210 (213), para. 11 (DB).

7.2.7. The view of a Division Bench of the Punjab and Haryana High Court1is that the stage for reserving the right to lead evidence in rebuttal should "remain open upto the time beyond which it might lend to cause prejudice to the other party. Plainly enough, this would be the point of time before the commencement of the evidence by the opposite side at which stage clear notice may be given that the same may well be met by rebuttal testimony."

1. Ibid.

7.2.8. According to this view, no serious prejudice arises, even if the right is exercised at a stage later than the commencement of the evidence of the party who has the right to begin. In the larger perspective, therefore, the High Court opted for a somewhat liberal view, to hold that this right may well be exercised at any time before the commencement of the evidence by the opposite side, so as to put it on guard and avoid prejudice before it begins the examination of its own witnesses.

7.2.9. According to the Mysore High Court, though the law does not prescribe the stage for apprising the court of the option, it is reasonable that this should be done "before he begins to adduce his evidence, and in any case before the other party begins his evidence, so that it might be borne in mind that the party beginning has not closed his evidence." In the Mysore case, the defendant (on whom the burden of proof lay on the facts and who had, therefore, the right to begin) did not apprise the court of the exercise of option until the evidence of both the parties was closed and the case set for arguments. It was held that the option could not be exercised at such a late stage.1

1. S. Chandra Keerti v. Abdul Gaffar, AIR 1971 Mys 17 (18), paras. 2, 3, and 4 (K. Jagannatha Shetty,

Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back

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