N.A. Britto, J.@mdashRule. By consent heard forthwith.
2. The challenge in this Writ Petition is to the order dated 17.11.2008.
3. The petitioners and the respondents are brothers. The petitioners filed Regular Civil Suit No. 25/96/B. The respondents filed Regular Civil Suit No. 18/97/B. The issues were framed on 18.10.2006 and 7.8.1998 in the suits filed by the petitioners and respondents respectively.
4. The petitioners/plaintiffs led their evidence in support of the issues in Regular Civil Suit No. 25/96/B. There are only two main issues in Regular Civil Suit No. 25/96/B. The plaintiffs led evidence in support of the same and after that both the parties filed a joint application on 29.3.2008. As per this application both the parties stated that parties in both the suits were common. They further stated that in Regular Civil Suit No. 25/96/B the plaintiffs had examined the plaintiff No. 1 and closed their evidence reserving their right of rebuttal and in Regular Civil Suit No. 1 8/97/B the plaintiff No. 1 had filed their affidavit in evidence and the matter was pending for cross examination. Both the parties agreed that the suits be clubbed together and common evidence be recorded. Accordingly, the suits were clubbed together and the plaintiffs in Regular Civil Suit No. 25/96/B were allowed to lead their evidence in defence in Regular Civil Suit No. 1 8/97/B and the same was to be read as rebuttal evidence in Regular Civil Suit No. 25/96/B. There is no dispute that the issues in Regular Civil Suit No. 25/96/B are totally different from first three issues in Regular Civil Suit No. 18/97/B. The respondents as plaintiffs have already led the evidence, the onus of which was on them in support of the first three issues in Regular Civil Suit No. 18/97/B. However, when the petitioners/plaintiffs in Regular Civil Suit No. 25/96/B wanted to lead evidence in rebuttal of the same an objection was taken on behalf of the plaintiffs in Regular Civil Suit No. 18/97/B and that objection has been upheld by the learned Trial Court by the impugned order. Admittedly, the petitioners/plaintiffs had no opportunity to lead any evidence in rebuttal to the first three issues in Regular Civil Suit No. 1 8/97/B and they would be entitled to lead the same. Otherwise, the evidence of the plaintiffs in Regular Civil Suit No. 1 8/97/B will go unrebutted. To that extent the impugned order cannot be upheld. The learned Trial court ought to have given an opportunity to the Petitioners to lead evidence in rebuttal on first three issues in Regular Civil Suit No. 1 8/97/B for which they had reserved their right with consent of the plaintiffs in Regular Civil Suit No. 18/97/B. The petitioners/plaintiffs would certainly be entitled to lead evidence in rebuttal to the evidence already led by the plaintiffs in Regular Civil Suit No. 1 8/97/B on first three issues. The Counsel on behalf of the respondents submits that in that event the respondents may also be allowed to lead further evidence. The respondents are not entitled to such a right or another opportunity, as they have already led evidence on the said three issues, the onus to prove the same, being on them.
5. In view of the above, the impugned order is hereby set aside. The petitioners/plaintiffs would be entitled to lead the evidence in rebuttal on the first three issues in Regular Civil Suit No. 18/97/B, and, with the above observations, the petition is disposed of and Rule made absolute in terms of prayer Clause (a).
