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Civil Revision No. 668 of 1967, decided on 9th January 1969.

Plaintiff having right to produce evidence in rebuttal failing to reserve such right and closing evidence‑Subsequently, however, application moved for permission to examine evidence in rebuttal and same allowed by Court‑Plaintiff, held, though not entitled to produce any evidence after closing evidence yet since permission had already been granted by Court and case related to matrimonial relationship between parties, order of Court not interfered with in revision by High Court.

Ch. A. Wahid Salim for Petitioner.

Ghulam Muhammad Bhatti for Respondent.

Dates of hearing : 29th November and 9th December 1968.

This is a. petition for revision under section 115, C. P. C. against the order dated the 24th of October 1967, passed by Malik Khizar Hayat, Civil Judge, Lahore, by which the respondent was allowed to produce witnesses other than herself in support of issues Nos. 2 and 3, and by which the order dated the 4th of October 1967, burdening the respondent with a sum of Rs. 100 as costs, was set aside.

2. The facts forming the background of this case are as under:

The petitioner brought a suit for restitution of conjugal rights against the respondent and for a permanent injunction against her sister and father restraining them from preventing the respondent from living with the petitioner as his wife. This suit was filed in the Civil Court at Multan. The respondent filed a suit against the petitioner in the Civil Court at Lahore for .a declaration to the effect that the marriage between the parties was void and that the nikahnama was ineffective and fictitious. Both the parties moved this Court for the transfer of the two cases to Lahore and Multan respectively and under orders dated the 18th of January 1965, the Multan case was transferred to Lahore. The two cases were consolidated in the Court of 'Mr. Muhammad Amir Malik Civil Judge, Lahore, and proceedings were taken in the suit instituted, by the respondent wherein the following issues were framed :‑

(i) Whether the nikahnama marked "A" is illegal, fictitious and void O. P. P

(ii) Whether there was a marriage between the parties and the defendant is entitled to a decree for restitution of conjugal rights O. P. D.

(iii) Whether defendants Nos. 2 and 3 in the other suit were restraining the plaintiff from living with the defendant O. P. D.

(iv) Whether the Civil Court at Lahore has jurisdiction in this suit O. P. P.

(v) Relief.

For the respondent, her attorney Abdul Ghani and Mr. A. G. Tasha, Handwriting Expert, were produced and her counsel closed the evidence on the 24th of February 1966. The petitioner, who was a resident of Multan and had to fight this litigation in Lahore, closed his evidence on the 4th of April 1967. The case was fixed for arguments on the 24th of April 1967, and arguments were heard on the 25th of April 1967, when the case was adjourned to the 10th of May 1967, for orders. It was again adjourned to the 19th of May 1967, for orders on which date the case was submitted to the learned District Judge for being transferred to some other Court. The cases were entrusted to the Court of Malik Khizar Hayat and were fixed for arguments on the 23rd of September 1967. The respondent made an application on that date under Order XVIII, rule 2, C. P. C. read with section 151, C. P. C. for her statement being recorded as P. W. Arguments were heard on that application on the 4th of October 1967. Her statement as P. W. was permitted to be recorded on payment of Rs. 100 as conditional costs and the case was fixed for 24th October 1967. On that date, the respondent produced a list of four more witnesses for their statements being recorded on issues Nos. 2 and 3 and also moved an application for the orders regarding the payment of Rs. 100 as conditional costs being set aside in review. The learned trial Court allowed the additional witnesses to be examined and set aside the order for payment of costs without allowing an, opportunity to the petitioner to put in a written reply. The order dated the 24th of October 1967, is attacked on the ground that the respondent had not reserved any right of rebuttal, that the witnesses now sought to be produced were not mentioned in the original list of witnesses and that the impugned order was illegal and improper.

3. The relevant provision of law is contained in rule 3 of Order XVIII of the Code of Civil Procedure, according to which 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. In the instant case, the respondent had a right to produce only her affirmative evidence and to reserve her right to produce evidence in rebuttal of issues Nos. 2 and 3. The respondent did not exercise her right and her counsel closed her evidence on the 24th of February 1966, without reserving any right of rebuttal. There was nothing wrong or illegal. The respondent only failed to reserve for herself a right which she could have reserved if so advised. The impugned order has proceeded on the assumption that the respondent's right of producing evidence in rebuttal was still available to her in spite of her evidence having been closed unconditionally on the 24th of February 1966. This assumption is wrong. She only had a right to reserve her evidence for being produced in rebuttal and had an option either to reserve the same or to close her entire evidence. After her evidence was closed on the 24th of February 1966, she could not produce any evidence in rebuttal on issues Nos. 2 and 3 as of right. When a request was made' for her being permitted to be produced as P. W., it was allowed on payment of Rs. 100 as costs and the present petitioner had submitted to these orders. He has come in revision only because four more witnesses have now been allowed to be produced on issues Nos. 2 and 3 and because the order awarding costs was also set aside. So far as the order setting aside the order for costs is concerned, the learned counsel for the respondent has not been able to defend the same. Learned counsel for the petitioner also objected that the witnesses now sought to be: produced were not mentioned in the original list of witnesses and that they could not be summoned without the orders of the Court under Order XVI, rule 1, C. P. C. Since the trial Court allowed the witnesses to be summoned there was nothing illegal or irregular. The fact that these witnesses were not mentioned in the list of witnesses filed in the case for the respondent might have prejudiced the petitioner's defence and the learned counsel for the respondent stated at the Bar that the petitioner may be allowed a fresh opportunity to produce: any evidence after notice of the new witnesses that the respondent wants to produce and has further undertaken to close her evidence on one date. He had also no objection to the costs being allowed to the petitioner. Learned counsel for the petitioner, however, was still not agreeable. Since, however, the case has already been allowed to be re‑opened for evidence by the respondent being permitted to be produced as P. W. and since it relates to matrimonial relationship between the parties which is going to affect them throughout their lives, it is not considered desirable to interfere with the discretion exercised by the Court in allowing the four additional witnesses. The respondent is a lady and the evidence in the case has been closed by her counsel. Moreover, the petitioner had submitted to the earlier orders of the Court allowing the plaintiff to be examined on payment of costs. In these circumstances, the orders of the trial Court are not set aside in toto but are modified in the following manner. The respondent shall file a supplementary list of the witnesses' on a given date. The petitioner shall then be allowed an opportunity to produce any additional evidence if he desires in view of the new witnesses sought to be produced by the respondent. Thereafter, the respondent shall be permitted to produce her evidence which she shall close on one date as promised by her counsel. If for any reason she has to claim another adjournment the learned trial Court may consider whether the same is to be allowed or not and the costs, if any, on payment of which it is to be allowed. This opportunity is allowed to the respondent for additional evidence on payment of Rs. 150 as costs which will be conditional. The petitioner will also be entitled to the costs of the present proceedings. The petition for revision will stand disposed of accordingly.

K. B. A.

Order accordingly.

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