M. JAGANNADHA RAO, J.

( 1 ) THIS revision has been referred to a Division Bench by Immaneni Panduranga Rao,. by order dated 26-2-1991 as he considered that the decision rendered by Kodandaramayya,. in T. China Panduranga Rao v. B. Venkatap-paiah, (1986) 1 APLJ (Short Notes) 78 requires reconsideration. We shall first mention how the point arises and then refer to the conflicting views expressed by the two learned Judges.

( 2 ) THE petitioner before us is the plaintiff. The suit -- OS No. 95 of 1980 -- was filed initially in the Court of the District Munsif, Chintalapudi, West Godavary, and was subsequently transferred to the District Munsif s Court, Eluru, and was registered as OS No. 23 of 1985. The suit for specific performance was based on an agreement dated 25-11-1975 executed by the first defendant in favour of the plaintiff. The first defendant contended that the suit agreement was got executed by the plaintiff by playing fraud and misrepresentation on him. The third defendant is claiming under an earlier agreement of sale dated 26-5-1975 pursuant to which it is stated that the registered sale deed was executed on 16-7-1980 in favour of defendants 2 and 3. Defendants 2 and 3 contended that they are bona fide purchasers and that, at any rate, without notice of the agreement in favour of the plaintiff. On the basis of the above said pleadings, the Court framed five issues for consideration which are as follows:" (1) Whether the agreement of sale dated 25-11-1975 is vitiated by fraud and misrepresentation (2) Whether the sale of the plaint schedule property to D2 and D3 by D1 is true, valid and binding on the plaintiff (3) Whether D2 and D3 are not bona fide purchasers for value (4) Whether the plaintiff is entitled for specific performance of the agreement of sale dated 25-11-1975 and (5) To what relief". The plaintiff examined PWs. 1 to 6 on his side and closed his evidence on 4-9-1984. Thereafter, the defendants adduced the evidence of DWs. I to 10 and closed their evidence on 6-8-1990. The suit was then posted for arguments. More than two months after the defendants closed their evidence, the plaintiff filed the present interlocutory application on 10-10-1990 seeking permission to adduce rebuttal evidence under S. 151, CPC. In the said application, the plaintiff merely stated that it has become necessary for him to prove that the evidence adduced by the defendants is false and that he has been advised that he should adduce rebuttal evidence and that, therefore, the Court may grant permission for adducing such rebuttal evidence. The respondents filed a counter-affidavit stating that the evidence on behalf of the plaintiff and the defendants was completed and that the matter was posted for arguments and that the plaintiff has now filed the petition for adducing rebuttal evidence for which he is not entitled and that the petition is, in fact, filed to drag on the proceedings. It is further stated that in the suit, as per the issues, the burden lay on the plaintiff to prove his case and that, in his turn, he had examined himself and several witnesses on his side. After completion of the evidence of the defendants, the present petition is filed and that it deserves to be dismissed.

( 3 ) THE learned District Munsiff referred to the decision of Kondandaramayya,. in China Panduranga Raos case (1 supra) which was relied upon for the plaintiff but distinguished the same on the ground that the petitioner had not reserved his right to adduce any rebuttal evidence and that it is not his case that he has not at all adduced any evidence on issues 1 and 2. The Court also observed that the petitioner had, in fact, adduced evidence on issues 1 and 2. The petition was accordingly dismissed. It is against the said order that this revision petition has been filed.

( 4 ) IT is contended for the petitioners by Shri C. V. N. Sastry that the petitioner has the legal right to adduce rebuttal evidence on issues 1 and 2 after completion of the evidence of the defendants. He further submits that the Court below erred in thinking that the petitioner had already adduced some evidence on issues 1 and 2 and had no right to adduce rebuttal evidence. Learned counsel also relied upon Cl. (4) of R. 2 of O. XVIII, C. P. C. as to the power of the Court to permit further witnesses to be examined.

( 5 ) ON the other hand, learned counsel for the respondents, Shri G. Vasantha Rayudu, has contended that in the application filed by the petitioner it was not even mentioned that the petitioner reserved his right to adduce rebuttal evidence or that he so intended and that the only allegation is that the petitioner wants to disprove the defendants evidence. The learned counsel further submits that, in fact, the petitioner had already adduced evidence on issues 1 and 2 before the evidence of the defendants started. The learned counsel submits that it is not a fit case wherein the petitioner could be permitted to adduce further evidence under Cl. (4) of R, 2 of O.

( 6 ) WHEN the matter came up before Immaneni Panduranga Rao,. , the petitioners counsel relied upon the decision in China Panduranga Raos Case (1 supra) and also the passage in that judgment to the effect that:"the mere fact that specific reservation is not made is not fatal unless there is anything in the record either expressly or impliedly to show that he lost his right to adduce evidence. "panduranga Rao,. was of the view that the above said observations are not correct in view that the above said observations are not correct in view of the language of O. 18, R. 3, CPC. The learned Judge observed that when the plaintiff has not chosen to expressly adopt the latter course of reserving the right of rebuttal under O. XV11i Rule 2, CPC, he should have placed something on record to show that he opted to reserve such right to adduce rebuttal evidence. He further observed that there need not be anything on record to show that he had forfeited his right because O. XVIII, R. 3, CPC does not say that unless a party had forfeited his right, he is entitled to adduce rebuttal evidence. With these observations, the learned Judge directed the matter to be posted before a Division Bench. That is how the matter is coming up before us.

( 7 ) O. XVIII, R. 3, CPC reads as follows:"evidence where several issues. 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. "the above said rule lays down the procedure as to how the evidence has to be adduced whenever the burden of proof on some issues is on one party and on other issues on the opposite party. As to who is entitled to begin, O. XVIII, R. I states that the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either on the point of law or on some additional facts urged 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. O. XVIII, R. 3, however, does not mention in what manner the option, either to adduce evidence or to reserve, has to be exercised by a party or as to when such a reservation is to be made. Questions have naturally arisen before the Courts on these matters of procedure. In several cases, it has been held that the option has to be exercised by the party intending to begin, at the time when he commences the evidence on his side. In some other cases, it has been held that he should exercise the said option after closure of the evidence on his side and before the opposite party begins his evidence. In some cases again it has been held that there should be express reservation of the right to adduce rebuttal evidence and in some other cases it has been held that it need not be expressly reserved and that the reservation could be implied from the facts and circumstances of the case. If, however, there is no express reservation, nor any such reservation which could be implied from the facts and circumstances of the case, the party would not be entitled to adduce rebuttal evidence. In our High Court Kondaiah,. (as he then was), in. Nookalamma v.. Simchachalam, AIR 1969 Andh Pra 82, held that the plaintiff is entitled to express his reservation to adduce evidence by way of rebuttal after the completion of the evidence on the side of the plaintiff and before the commencement of the evidence for the defendant under O. XVIII, R. 3 in respect of issues on which onus lies on the defendant. The option given to the party, contemplated under O. XVIII, R. 3, is to be exercised only at or before the time when the other party that has got the right to lead evidence begins, and not afterwards. The above said view of the learned Judge that the option could be exercised by the party beginning, at or before the time when the opposite party starts his evidence, has been followed by Jagarmath Shetty,. (as he then was) of the Mysore High Court in S. Chandra Keerti v. Abdul Gaffar, AIR 1971 Mysore 17. The learned Judge, however, observed that, on the facts of the case, the party who began the case, namely, the defendant, could not be said to have intended or reserved his right to adduce rebuttal evidence. In that context, the learned Judge observed that it is reasonable that the right of reservation under O. XVIII, R. 3 should be exercised either before the party begins his evidence or, in any event, before the other party begins his evidence so that it might be borne in mind that the party beginning has not closed the evidence. The learned Judge also considered that the case was not a fit case for exercising power under O. XVIII, R. 2, CPC. Rajasthan High Court in Inderjeet Singh v. Maharaj Raghunath Singh, AIR 1970 Rajasthan 278 has also taken the same view. It was held that the rule does not prescribe the stage at which the Court should be informed about the exercise of the option therein. It is sufficient if the party leading evidence does so (provided it has not led any evidence on the issue covered by the option) before the other party begins its evidence. The learned Judge dissented from the decisions of the Saurashtra High Court in Motibhai v. Umedchand, AIR 1956 Saurashtra 52, and also with the decision of the Vindhya Pradesh High Court in Nanhey Raja v. Kedar Nath, AIR 1953 Vindh Pra 34 wherein it was observed that the option should be exercised by the party who begins his evidence, before starting the evidence on his side. The Delhi High Court had also expressed a similar view in Kaviraj Ganpat Lal Sidhwani v. Om Parkash, (1975) 77 Pun LR (D) 10.

( 8 ) ALL these decisions were considered by a Division Bench of the Punjab and Haryana High Court in Jasvvant Kaur v. Devinder Singh, AIR 1983 Punj and Har 210 by S. S. Sandhawalia, C.. and S. P. Goyal,. The learned Judges observed that on the language of O. XVIII, R. 3, CPC, on principle, and on the weight of precedent, the last stage for exercising the option to reserve the right of rebuttal can well be before the other party begins its evidence. The learned Judges followed the above said decisions and dissented from the decision of the Saurashtra High Court. They also dissented from the decision of the Madhya Pradesh High Court in Laxmi Narainv. Baburam, AIR 1977 Madh Pra 191, wherein a view similar to the view of the Saurashtra High Court was taken. We arc in entire agreement with the view expressed by Kondaiah,. in Nookalamas Case (AIR 1969 Andh Pra 82) (supra) and with the similar views expressed by the Mysore, Rajasthan, Delhi and the Punjab and Haryana High Courts and we respectfully dissent from the views expressed by the Saurashtra, Vindhya Pradesh and Madhya Pradesh High Court. We are of the view that on the language of Order XVIII, Rule 3, CPC, on principle, and on the weight of precedent, the last stage for exercising the option to reserve the right of rebuttal can well be before the other party begins his evidence.

( 9 ) COMING to the manner of the exercise of the option, there can be no difficulty in cases where the right of rebuttal is exercised expressly by the party who begins, either at the beginning of his evidence on his side, or, at any rate, when he closes the evidence and before the opposite party starts evidence on its side. The difficulty, however, arises in cases where there is no such express reservation. Kodandaramayya,. took the view that in a case where the party had not adduced any evidence on a particular issue, the mere fact that specific reservation is not made was not fatal, unless there is anything in the record either expressly or impliedly to hold that he lost his right to adduce evidence. The learned Judge pointed out that there could be a situation where the party who adduced the evidence in the first instance exercised his right to begin his case and did not adduce any evidence on the particular issue and the party on whom the burden lay also did not adduce evidence on that issue and in such a situation there would be no evidence at all on the issue. The learned Judge once again observed that there was no warrant to hold that in the absence of any specific written memorandum filed into Court reserving such right to adduce rebuttal evidence, the party must be deemed to have forfeited its right to adduce evidence in the absence of any other material on record. When nothing is disclosed in the record to show that he had forfeited his right, the mere omission to specifically reserve the right by filing a written application into Court would not destroy his right to adduce such rebuttal evidence. The learned Judge referred to Shaw v. Beck, (1853) 8 Exch 392, for the proposition that the plaintiff does not lose the right to have such discretion exercised in his favour by not adducing evidence in the first instance to rebut the plea set up by the defendant, although the nature of the defence is disclosed by the cross-examination of the plaintiffs witnesses. In that context, the learned Judge also referred to the power of the Court under Cl. (4) of R. 2 of O.. On the facts of the case before the learned Judge, he came to the conclusion that the affidavit filed merely averred that the plaintiff adduced evidence on other issues and reserved his right to adduce rebuttal evidence. But when the trial Court in that case refused to grant any permission in view of the fact that no memorandum was filed into Court reserving the right of rebuttal, the learned Judge held that the mere omission to file the memo was not conclusive and allowed the revision petition.

( 10 ) A similar situation arose in the case before the Punjab and Haryana High Court in Jaswant Kaurs Case (MR 1983 Punj and Har 210) (supra ). In that case, the suit was one for permanent injunction restraining the defendant from interfering with the plaintiffs possession. A large number of issues were framed and the burden of proof rested on the plaintiff on some issues and on the defendant on some other issues. The plaintiff, who apparently had the right to begin, had not completed their evidence both in affirmative and in rebuttal. The plaintiffs counsel made a statement that he was closing his case in affirmative only. At a later stage when the plaintiff wished to lead evidence in rebuttal, an application was preferred on behalf of the defendant therein stating that the plaintiff should be disallowed from doing so because the option to reserve the right of rebuttal had not been expressly exercised at the very outset. The trial Court rejected the said application holding that the statement given by the plaintiffs counsel that he was closing the evidence in the affirmative had implicit therein that the right of rebuttal stood reserved. In that case, no memorandum or anything in writing was filed into Court to show that the plaintiff had expressly reserved the right of rebuttal. Even so, the trial Court held reservation could be implied. The said view was affirmed by the Division Bench and, in that context, the provisions of O. XVIII, R. 3 were examined and a reference was made to various decisions of the Court and also to O. XVI R. 1, CPC. The Court initially held that the reservation could be made by the party beginning the evidence at any stage before the opposite party already started its evidence. The Court then considered the question whether it could be said that there was any reservation by implication. In that context, Sandhawalia, C.. observed as follows (Para 13 of AIR):". . . . . The modalities of reserving the right of rebuttal also calls for some comment. It appears to me that herein also an overly strict view is not to be taken. If it is possible to necessarily imply from the mode of reservation that the right of rebuttal has been retained, then it should not be negatived, merely on the ground that it has not been so done in express terms. Cases where the party or its counsel makes the statement that he closed his evidence in the affirmative only, would inevitably imply that rebuttal evidence may well be led and consequently such right has been reserved. "from the aforesaid decision, it is clear that the reservation of the right to adduce rebuttal evidence need not always be express but it can also be implied from the facts and circumstances of the case. Just as Kodandaramayya. implied such a reservation by the fact that the plaintiff in that case had not adduced any evidence whatsoever on certain issues on which the burden lay on the opposite party, the Division Bench in the Punjab and Haryana High Court, in the case above referred to, implied such a reservation on the basis of the statement of the counsel in that case that he was closing the evidence in the affirmative only.

( 11 ) FROM the aforesaid decisions, we are of the view that the reservation of the right of adducing rebuttal evidence need not be express and need not always be by way of a memo filed on behalf of the party who has begun the evidence on his side. Of course, if the reservation is express, the matter would present no difficulty. But such a reservation could also be implied in a case where the counsel for such a party makes a statement that he is closing the evidence of his party in the affirmative only. In such a case, it must be held that the party had implicitly reserved the right to adduce rebuttal evidence. Kodan-daramayya,. implied such a reservation on the facts of the case before him particularly because the plaintiff in that case had not adduced any evidence whatsoever on some issues on which the burden lay on the opposite party. We are of the opinion that the view taken by Kodandaramayya,. that reservation need not be express but could be implied and which view is supported by the judgment of the Division Bench of the Punjab and Haryana High Court, is correct and does not run counter to the provisions of O. XVIII, R. 3, CPC. In our view, the reservation could be implied from the facts and circumstances of the case or the conduct of the case. We do not, therefore, agree with the view of Panduranga Rao, J, that reservation should always be express or by way of a memo filed on behalf of the party who begins the evidence on his side.

( 12 ) COMING, however, to the facts of the case before us, we do not think that this is a case where it could he said that the petitioner-plaintiff has reserved the right of rebuttal, whether expressly or by implication. In fact, the finding of the lower Court is that the petitioner has adduced the evidence even on issues 1 and 2 upon which the burden lay on defendants I to 3. In any event, in the application filed for adducing rebuttal evidence, the plaintiff did not say anywhere that he had reserved his right of rebuttal at the time when the evidence on his side was closed. The only averment has that the plaintiff wanted to adduce further evidence to disprove the case of the defendants. On those allegations, the petitioner was certainly not entitled to adduce further evidence. Further, the application was filed more than two months after the defendants closed their evidence and after the matter was posted for arguments and is, therefore, certainly belated. We do not also think that this is a fit case where we can allow the petitioners counsel to invoke the jurisdiction of the Court under Cl. (4) of R. 2, O. XVIII for the reason that the application itself was filed at a very belated stage.

( 13 ) FOR the aforesaid reasons, we hold that the decision of Kodandaramayya,. in China Panduranga Raos case (1986 (1) APLJ (SN) 78) (supra) is correct in law and does not require reconsideration. However, it will be for the Court before which the question arises to consider whether, on the facts of any particular case, the right of reservation could be treated as having been reserved by implication.

( 14 ) THE reference is answered accordingly. The revision petition is dismissed. There shall be no order as to costs.

( 15 ) ORDER accordingly.