(1989)1989Apnl20 (DEMETR1ADES,SAWIDES, BOYADJISJJ) ANDREASTSIARTASANDOTHERS, Appellants-Defendants, v. AVGER1NOSTALIOTIS, Respondent-Plaintiff. (CivilAppeal No. 7109). Civil Procedure — Trial—Evidence in reply—The Civil Procedure Rules, 0.33, rule 7(b)—Principlesgoverning the discretion of the Court—Extensive reference to Englishauthoritiesonthe point — Burden of proof in respect of particular issue cast on the defendant — TrialJudgerightlyexercised hisdiscretionandgranted totheplaintiffleave toadduce evidence in reply. 5 The plaintiff claimed damages for breach of contract for the payment to him of commission for services rendered insecuring to the defendants a plot of land for purchase. Defendants alleged in their defence that the relevant contract for the sale of the land had 10 been rescinded by them in exercise of a right under such contract. The defendants summoned asawitnessthe sellerofthe land,but at the end, they did not call him as a witness. Evidence about such rescission was given by defendant 2 during his cross-examination. The plaintiff sought leave to adduce evidence in reply in order to 15 rebut the allegation ofrescission bycallingthe selleroftheland.The trialJudge granted such leave.Hence thisappeal. The matter isgoverned by the CivilProcedure Rules,0.33 rule 7 (b)*. Having stressed that the authorities relating to acceptance of new evidence on appeal have no bearing on thiscase and having 2 0 extensivelyreferredtoEnglishauthoritiesonthequestion ofallowing evidenceinrebuttal,approvingatthesametime,thesummaryofthe principlesofsuchauthorities,asreferred toinPhipson On Evidence, 13th Edition under the heading «Evidence in rebuttal» para 33-92, the Court. *Quoted atp. 220 post. 216 25 1C.L.R. Tsiartasand Another v. Taliotis Held, dismissmq the appeal The alleqation that the aqreement between the defendants and the third party (the owner of land) was rescinded was raised by thedefendants Itwas their contention that the plaintiff was not entitled to the agreed remuneration once the agreement has been rescinded The burden of proof was upon the defendants in this respect and obviously it was for this reason that they summoned the seller of the land to give evidence on their behalf Oncetheproof of thisallegation rested uponthe defendants thetnalCourtnghtly allowed theplaintiff tocall evidence in reply 5 10 Appealdismissedwithcosts Casesreferredto Pounkkos (No 2) ν Fevzi,1962 CL R 283, Ashiotisand Others ν Wernerand Others
(1968)1CL R 43, Moumdjis ν Anstidou and Others
(1974)1C LR 226, 15 Pavhdou andAnother ν YerolemouandOthers
(1982)1 C L R 912, Skone ν Skone andAnother [1971] 2 All ΕR 582, __ Ladd ν Marshall[1954] 3 All ΕR 745, Williams ν Davies,1Cr &Μ 464, Wnght ν Willcox,9C Β 650, 20 Penn ν Jack, L R 2 Eq 314, Shaw ν Beck, 9 Exch 392, Bigsby ν Dickinson, 4 Ch D 24, Budd ν Davison,29 W R 192, Rogers ν Manley, 42 LΤ 584, 25 Jacobs ν Taneton [1848] 11 Q Β 421,116 ΕR 534 Appeal. 3C Appeal by defendant 2 against the decision of the DistnctCourt of Limasso! (Korfiotis, D.J) dated the 8th January, 1986 (Action No 4210/82) whereby leave was granted tothe plaintiff toadduce further evidence A. Lemis, for the appellant £ Theodoulou, for the respondent Cur. adv. vult 217 Tsiartasand Another ν Taliotis
(1989)DEMETRIADESJ Thejudgment of the Courtwillbe delivered by Mr Justice Sawides SAWIDES J This isan appeal against the decision of a Judge of the DistnctCourtof Limassol granting leave totherespondentplaintiff toadduce further evidence inCivil Action No 4210/82of the DistnctCourtof Limassol 5 By a writ of summons issued on 11th December, 1982, the respondent-plaintiff, hereinafter tobe called the plaintiff, claimed against the appellants-defendants, hereinafter to be called defendants, damages for breach of contract for the payment to 10 him of commission for services rendered in secunng to the defendants a plot of land for purchase Defendant 2 by his Statement of Defence admitted that acting for himself and the other defendants engaged the plaintiff to secure for them a plot of land As to his commission it is his 15 allegation that though the commission was payable by the seller nevertheless the defendants agreed topay tohim, inequal shares, by way of gift a total sum of £2,000 -Itis also admitted thatas a result of theefforts of theplaintiff,one MiltiadesMma,whowas the owner of aplot of land suitable for the defendants was introduced 20 to the defendants and an agreement was concluded between the defendants and such owner for the purchase of such property According to the defendants the agreement was subject to a condition thatiftheyieldof theborehole onsuchpropertywas less than 24 tons per hour or unsuitable for exploitation as dnnking 25 water the defendants would be entitled to revoke the agreement He further mentioned in his Statement of Defence that a few daysafter the agreement was concludedandsigned thewater was tested and was found nottocomply with theconditionprecedent, and as a result the agreement was rescinded The case went on for heanng andboth plaintiff anddefendant 2 adduced evidence insupport of theirrespective versions After the close of the case for the defendants, the plaintiff filed an application praying for leave of the Court to adduce further evidence in reply in the action By such application he sought to 35 call as a witness the seller of the plot of land, namely, Miltiades Mmaof KaloChonotogiveevidence inrebuttaltothe allegations of defendant 2 that the agreement was rescinded for the reasons alleged by him 218 J U 1C.I..R. TsiartasandAnother v.Taliutis SavvidesJ. The application was supported by an affidavit swom by the plaintiff totheeffect thatMiltiadesMinaofKaloChorioisawitness whose evidence is necessary for the determination of the claim and that such evidence should be allowed tobe given in reply to 5 the evidence called bydefendant 2.The evidence ofsuch witness would be to the effect that the agreement' of sale was never rescinded as alleged by defendant 2. The reason that he did not call such witness in the first instance was that the witness was summoned bythe defendants togive evidence insupport of their 10 allegation that the contract was rescinded but who finally did not callhim. Thelearned trialJudgeafter referring totheprovisionsofOrder 33, rule 7(ii) stressed the fact that each party has to adduce evidence toprovehisallegationsandshould notwaittilltheendof 15 the case to call additional evidence in support of his case and concluded as follows; 20 25 30 «Thejudge however has discretionary power toallow one of the parties to adduce further evidence even if such evidence could havebeen produced when he was presenting his case ifhe considers it tobe in the interests of justice or to thesatisfaction oftheCourt.{Doed.Nicollv. Bower [1851116 Q.B. 805; Rogers v. Manley [1880] 42 L.T. 584; Budd v. Davison
(1880)29W.R. 192). Thejudgegenerallywillallowsuchevidencetobe adduced ifthe partyaskingforithasbeen taken bysurprise and forthis reason he did not adduce such evidence at the beginning (Bigsbyv. Dickinson[1876]4 Ch., p.24 C.A.). The evidence inreplywhether oralorbyaffidavit should as a rule be strictly limited in rebuttal of evidence of the defendant and notinsupport ofplaintiff's evidence. In the present case whilst defendant :'. was being crossexamined by counsel for the plaintiff mentioned that- he instructed Mr Tsiartasto cancel the agreement exhibit 1. Bearing in mind this allegation arose during the crossexamination ofdefendant 2theCourtconsidersthatitisinthe interestofjusticebearingalsoinmindtheaforesaid authorities that witness Miltiades Costa Mina of Kalo Chorio should be 219 SavvidesJ. Tsiartasand Anotherv.Taliotis
(1989)calledtogiveevidence whethertheagreement between them dated 73.85 wasterminated or not. For all other matters the Court is of the opinion that the plaintiff has no right to call evidence in reply because he should have done so from the beginning and in any event if 5 leave is granted to him it will amount to leave to adduce evidence insupport of hisown evidence». Both the application and the opposition were based on Order 33, rule 7, which under paragraph (ii)provides asfollows: «7(ii)Inother cases - 10 (a)The first partymay open hiscaseand adduce evidence; after hehasdone so,thesecond partyshallbeasked whether he intendstoadduce evidence and ifhestatesthathe doesso intend, then the first party may address the Court for the purpose of summing up the evidence; and finally the second 15 party mayaddresstheCourt.Ifthesecond partystatesthat he doesintendtocallevidence,thenthispartymayopenhiscase and adduce his evidence; and after he has done so, he may sum up the evidence, and finally thefirstpartymayreply. (b)The first partymay notadduce evidence inreplyexcept 20 byleave of the Court. Ifhe desiresto adduce such evidence, he must ask for leave immediately after the second party's evidence is concluded. If such leave isgranted, the second party's summing up shall be postponed until after the evidence inreply isheard. 25 (c)When the first party has replied, or, ifhe has no right to reply, when the second party has addressed the Court, the case shall be closed, unless the Court directs either party to adduce further evidence or itself callsanywitness». Rule7of the CivilProcedure Rulesand thesubsequent rules8, 30 9,10,11,12 of Order33,regulatingtheprocedureincivilactions, are based on the old Cyprus Civil Procedure Rules C.14,6 to C.14,11 and not on anycorresponding English Rules. Counsel for the appellant submitted that the trial Court was wrong in allowing such evidence to be adduced. He contended 35 thattherescission oftheagreementofsalewasinissueinthecase and ifsuch evidence wasnecessary itwas foreseeable and could be adduced in time had due diligence been exercised. In support 220 1 C.L.R. TsiartasandAnotherv.Taliotis SavvidesJ. of his contention counsel for the appellant sought to rely on the dictainanumberofcasesofourSupreme Courtinapplicationsto adduce further evidence before the Court of Appeal such as Pourikkos (No.2)v. Fevzi, 1962 C.L.R. 283;Ashiotis and Others 5 v. Weinerand Others
(1968)1C.L.R. 43;Moumdjis v.Aristidou and Others
(1974)1 C.L.R. 226; Pavlidou and Another v. Yerolemou and Others
(1982)1C.L.R.
- Itshould be observed however that allthe above authorities as well as the principles underlining the dicta in them touch the 10 question whether additional evidence onquestions offactmay be allowed bythe Court ofAppeal tobe adduced onappeal and not the procedure and powers of a District Court at the hearing of a civilaction toallowfurther evidence inreply under the provisions of0.33,r.
- 15 WehavenottracedanydecisionofourSupremeCourtinwhich thequestion ofallowingevidence inreplyorinrebuttalbythetrial Court was raised. The only case in which comments were made wasin Pourikkos v.Fevzi(supra) inwhich the Court of Appeal in dealingwith an application toadduce further evidence on appeal 20 made a remark on the decision of the trial Court to call fresh evidence inreplyasfollows:«... thetrialCourtgavetheplaintiff the opportunity, erroneously for the reason given above, tocall such evidence in reply», which however cannot be of any guidance in the circumstances of the present case. 25 The power of theCourt ofAppealtoadmit further evidence on appeal emanates from section 25
(3)of the Courts of Justice Law 1960and 0.35,r.
- Rule8 ofOrder35correspondstothe EnglishOrder58,rule
- The principles on which the Court of appeal will allow further 30 evidence tobe adduced onappeal arewell-established and are to the effect that the Court of appeal shall not allow evidence to be adduced which could have been adduced at the trial had reasonable diligence been exercised unless it is in respect of events which have supervened after the trial and the deliveryof 35 the judgment. (See, Pavlidou and Another v. Yerolemou and Others(supra)inwhichourcaselawonthesubjectisreviewed and reference ismade tothe dicta of Lord Hodson inSkone v. Skone &Another [1971]2AllE.R.582,586 andDenning,L.J.inLadd v. Marshall[1954] 3 All E.R. 745, 748 as to the conditions to be 40 fulfilled in order to justify the reception of fresh evidence). The 221 SavvidesJ. Tsiartas and Another v. Taliotis
(1989)object of restricting further evidence tobe called onappeal was as stated in most of the cases hereinabove referred tothatit is inthe public interest that there will be an end to litigation (interest reipublicae utsit finis litium) In thepresent case we are notconcernedwith thepower of the 5 Court of appeal to allow further evidence of fact under0 35, r8, but whether the trial Court may allow evidence in reply under 0 33 r 7 Useful assistance inthisrespectmay be derived fromthe provisions in the English Rules of the Supreme Court and in particular the notes to0 37, r 1of such Rules which deal with the 10 question of rebutting evidence At ρ 864 of the said Rules (see Annual Practice 1960) cases are mentionedinwhich theJudge at the trial has a discretion toallow the plaintiff to adduce rebutting evidence Such cases are
(1)In answer toevidence ofthedefendant insupportof anissue, 15 the proof of which lay upon him {Williams ν Davies, 1 Cr & Μ 464, Wright ν Willcox, 9 CΒ 650, Penn ν Jack, LR 2 Eq 314). and the plaintiff does not lose his nght to have such discretion exercised in his favour by notgiving evidence inthe first instance to rebut the piea set up by the defendant, although the natureof 20 the evidence was disclosed by the cross-examination of the plaintiff's witness, {Shaw ν Beck, 8 Exch 392)
(2)When the plaintiff has been taken by surprise, or the evidence in contradictory{Bigsbyv Dickinson, 4 Ch D 24,Budd ν Davison,29 W R 192, Rogers ν Manley, 42 LΤ 584) 25 InOdger's PnnciplesofPleadingandPractice,22ndEdition,we read thefollowing at ρ 298 «In some cases, at the close of the defendant's case, the plaintiff may be allowed tocall further evidence toanswer an affirmative case raised by the defendant Thus, if the 30 defendant has pleaded an excuse or justification for his conduct, the plaintiff may, if he chooses, deal with this defence and call evidence to rebut thejustification inthe first instance, or he may, at the judge's discretion, be allowed to confine his onginal case to proving what the defendant did, 35 and, when apnmafacie defence hasbeen established, todeal with it in his reply But the plaintiff cannot, inthe absence of special circumstances,call some evidence torebut the justifi cation mthe first instance,and moreafterwards inreply, thus dividing his proof» 40 222 IC.L.R. TsiartasandAnotherv.Taliotis SavvidesJ. An elucidation of the above principles may be derived from some of the cases to which reference is made in the Annual Practice and Phipson on Evidence in support of the above quotations, tothe extent that these reportscould be traced in our 5 Supreme Court Library. In Wrightv. Willcox,9 C.B. 650, English Rep. 137 C.P. 1047, theclaimwasforfalseimprisonment.Thedefendant pleaded, that the plaintiff had stolen the defendant's chaff. He further pleaded that hischaff had been stolen,and that he had reasonable ground 10 to suspect the plaintiff. The plaintiff gave evidence, in the first instance,to accountfor her possession of chaff. The defendant produced witnesses, who pointed out marks shewingthatthechaff found intheplaintiff's drawer corresponded withthatbelongingtothedefendant, andmentioned inparticular, 15 that linseed wasmixed with the chaff, which wai;tobe unusual. In reply, the plaintiff's father was called to prove that several months before he had bought linseed, the invoice of which he produced, and that hesent it,mixedwithchaff, tohisdaughters.It wasobjected, that thiswitnessshould havebeen called inthe first 20 instance. The learned judge, however, received the father's evidence and his invoice; and a verdict was returned for the plaintiff. On appeal it was held that the judge had rightly exercised his discretion inallowingthe plaintiff to calla witnessinreply. Briefly 25 'he observations on appeal were asfollows: Wilde, C.J., after stating that he was not dissatisfied with the verdictsaid (atp.1050): 30 35 «Ithink the evidence in reply was properly received. The objection isnot tothe admissibility of the evidence, buttothe .stage ofthecauseinwhich itwasoffered. Werethat objection toprevail,theremightoften beafailure ofjustice.Thetimeat which evidence istobe received, must be in the discretion of the judge, the exercise of that discretion being subject to the reviewofthecourt.Inthiscase Icannot seethatthe admission ofthe evidence hasled toany injustice». . Maule,J., stated, at p.1050: «Supposing, however, this was not a matter in the discretion ofthejudge, Idonotthinkthattheevidence should 223 TsiartasandAnotherv.Taliotis
(1989)have been excluded. The defendant introduced a mark by which hesoughttoidentify thechaff. Evensupposingthatthe plaintiff had reason to suspect that such evidence might be given, Idonotthinkthatshewouldbeboundtowastetimeby answeringbyanticipation thatwhichmightneverbesetup». 5 SavvidesJ. Cresswell,J., stated, atthesame page: «Ifthequestion hadbeen, whetherthejudgewasboundto receive or bound to reject the evidence, Ishould have said that he wasbound toreceive it.When thewitnesses forthe plaintiff were examined, there was nothing to call their 10 attention tothefact oflinseed being mixed withthe chaff. But, however that maybe, it wasclearly a matter for the exercise ofthediscretion ofthejudge.Thecase isanalogous tothepracticeatnisiprius,ofallowingaquestiontobeputon re-examination which does not arise out of the cross- 15 examination». Talfourd, J., atthesame pageelthink that thiswasamatterforthediscretion ofthejudge, and I alsothink thatsuch discretion wassoundlyexercised.In my opinion, noinjustice hasbeen done;andIseenoground 20 for disturbing theverdict». Reference was made in the above case to the earlier case of Jacobs v. Tarleton [1848] 11Q.B.421(English Rep.116,p.534) but the Court did not consider such case as having any resemblance tothecaseunderconsideration.Thefactsofthecase 25 asappearing inthereport areasfollows: «Jacobs v. Tarleton which was an action against the indorser ofabill,theplaintiff made outa prima facie caseby proving the defendant's signature. In support of a plea traversing the indorsement, evidence wasgiven toshew that 30 the plaintiff wastoopoortohave givenvalueforthebill,and that he had denied that he knew anything of the bill orhad authorised the bringing of the action. Mr. Baron Parke refused to receive evidence in reply, that the plaintiff had possessed the means of discounting thebill, andhadinfact 35 discounted it.After timetaken, thecourtheldthatMr.Baron Parke was right in rejecting his evidence, saying, that the plaintiff mighteitherrelyupon aprimafaciecase,orgointoall 224 1C.L.R. 5 10 15 Tsiartasand Another v. Taliotis SavvidesJ. the evidence he had to confirm that prima facie; but that he was notentitledtorely, inthefirstinstance,uponaprima facie case upon that issue, and afterwards, when that prima facie case was called in question by the defendant, to call other evidence to confirm his prima facie case; and that it was not proposed tocall thewitness tocontradictanystatementmade by the defendant's witnesses, but to add a fact tending to supporttheplaintiff's primafacie case.(Maule,J.Ifthe witness called by the plaintiff to prove an indorsement prove it weakly, and the defendant calls evidence to shew the improbability of the genuineness of the indorsement, the plaintiff cannot call a witness to prove that he saw the defendant sign it. If that were allowed, a plaintiff might call witnesses, andkeep back one who itwas supposed might,on cross-examination, disclose something which would damage the plaintiff's case.)» In Penn v. Jack and Others (supra) evidence was allowed in repjy inasuit for thepurpose of restrainingan infringement ofthe plaintiffs patentfor thepurpose of rebuttingacase of prioruse set 20 " Ρ by the defendant. Sir W. PAGEWOOD,V.C. in his judgment had this tosay, atp. 317: 25 30 35 40 «Ithinkthe Plaintiff is entitledtoadduce evidence in reply for thepurpose ofrebuttingthecasesetupby theDefendants; and for thisreason,thatitisquite impossible for himto know what is the nature of the evidence which will be produced Thepractice atcommonlaw is stated in Taylor on Evidence; and it appears that where, as here, several issuesarejoined,thePlaintiff maycontenthimself with adducing evidence in support of those issues which he is boundtoprove,reserving therightofrebuttinghis adversary's proofs intheevent oftheDefendantestablishing aprima facie case with respect totheissueswhich lieuponhim.Insupport of this proposition, Shaw v. Beck is cited, where Parke, B., used the following expressions: 'But Abbott, C.J., laid down what appears tome tobe a morereasonable rule,by holding that theDefendant was boundtoprove hisplea, andthatthe Plaintiff might answer it by additional evidence'. Other instancesare also mentioned,all shewing thewide discretion given to the Judge in allowing evidence to be given by the Plaintiff in reply». 225 S«m ides J 1 siarl JS and Another v. Taliotis
(1989)InShawv Beck and Another {supra)(English Rep 155,pl401) upon the tnal of an interpleader issue in a county court, for the purpose of trying the titletocertain goods taken in execution, the plaintiff, insupport of histitle,gaveinevidence adeed (which was valid upon the face of it) by which the execution debtor had 5 assigned to him the goods in question, but the witness called to prove thr execution of the deed was cross-examined by the defendants with a view to show that the transaction was fraudulent, and the deed was therefore void - Held that the plaintiff was not bound to give evidence in the first instance to 10 establish the validity of the deed, although called upon by the judge to do so. and although the nature of 'he defence appeared by the cross-examination of the attesting witness, and therefore, that thejudge was wrong inrefusing toreceive evidence in reply, to rebut a case of fraud set up by the defendants to invalidate the 15 deed In the judgment of Pollock C Β at ρ 1403 we read the following «I quite agree with thedecision in Wnghtv Wilcox There, a prima facie case having been established by the plaintiff, the 20 defendant introduced an entirely new element into it, and although theeffect oftheevidence inreply, toacertainextent strengthened thecase onginally made,yet itrebutted the new matter adduced by the defendant, and it was clearly in the discretion of theJudge toadmitit,andhedidso Butthereare 25 cases in which, I think, the plaintiff is entitled, almost as a matter of nght, to give evidence in reply Where there are several issues, some of which are upontheplaintiff and some upon the defendant, theplaintiff may begin by proving those only which are upon him, leaving itto the defendant togive 30 evidence insupport of those issues upon which he intendsto rely, and the plaintiff may then rebut the facts which the defendant hasadduced insupport of his defence I think that the plaintiff was entitled to rely upon a pnma facie case, by proving the execution of the deed, for thatwas all which it 35 was incumbent upon him in the first instance toestablish He had a perfect nght to do so, and leave it to the defendant to impeach the consideration, and he was entitled in reply to rebut the defendant's evidence The same pnnciple of practice is recognised inthe action of ejectment, inwhich the 40 question depends upon thetitleof thedisputed property,the 226 \ 1C.L.R. TsiartasandAnotherv.Taliotis Sav*idesJ. plaintiff mayproveaprimafacie case;thedefendant maythen set upan entirely newcase;the plaintiff maythen inreplyset up another case, and so on: Doe d. Sturt v. Mobbs (Car.& M.l), Rowe v. Brenton (8 B. & C. 737), are authorities in support ofthisproposition. I,therefore thinkthatthe plaintiff was entitled to rest upon his prima facie case, and that the judge waswronginrefusing toallowhim togivethe evidence which he tendered in reply to the defendants' case. I am therefore of opinion that there oughttobe a newtrial» 5 10 PARKEB.had thistoadd, at the same page: «Iam of the same opinion. 1 willnot say that thiswasnota imatter in thediscretion of thejudge;but 1thinkthathe ought tohaveexercisedthatdiscretion inaccordance withtheruleof practice in these matters, and that according to that rule he ought to have admitted the evidence offered in reply.» 15 InRogeis v.Manley(supra)theplaintiff rested hiscasepartlyon an alleged conversation between himself and thedefendant atthe plaintiff's house on a certain evening inthe presence of plaintiff's wife. Plaintiffs wifewascross-examined astothesubstance ofthe 20 alleged conversation,butnotastothe factofthedefendant having been inthe house on that occasion. Thedefendant havinginhisexamination inchief deniedthat he wasinthehouse atallontheevening inquestion, leavewasgiven totheplaintiff, after the evidence on both sides wasclosed, tocall 25 further evidence torebut the defendant's denial. MALINS, V.C. after making reference to Taylor's Work on Evidence' wenton (atp.585) asfollows inhisjudgment:- 30 * 35 «... Therefore on that ground alone, it being within the discretion of the court, and as I am left in a most painful position with regard to the evidence, I having the positive statement ofone witnessthatthedefendant wasinthe house, and the statement of the defendant himself that he was not there, and when the plaintiff has not had an opportunity of meeting that, as there was no cross-examination upon it, I think I am at liberty to admit additional evidence. Another reason whyIthinkIoughttoadmittheevidence is,thatIknow there isanorderintheoldruleswhichauthorisesthecourt on any point on which it feels a difficulty to require further evidence.Therefore, independently of the cases,I am armed 227 SavvidesJ. TsiartasandAnotherv.Taliotis
(1989)with a power which Ihave exercised on several occasions before this.InthiscaseIfeel thegreatestpossibledifficulty as towhether Iam tobelievetheladyandMr.Rogershimself, or whether Iam to bclive Mr. Manley; and it being the turning point of the case, 1 think Iam perfectly at liberty tohave my 5 mind relieved byanyfurther evidencethatcanbecalledtoset the matteratrest,and therefore, on the old casescitedbyMr. Taylor,and upon theruleofthecourtwhicharmsmewiththis power, Igive leave toadduce further evidence to prove that Mr.Manley was inthe house ofMr.Rogers ontheevening of \Q the 19thAug. 1878». InBigsby v.Dickinson(supra)itwasheldbytheCourtofAppeal thatwhereapartyistakenbysurprisebyapointmadeagainsthim atthehearing,theJudge may, ifhethinksright,atanystageofthe trial allow him to produce rebutting evidence; and if such 15 permission isrefused, the Court ofAppeal will,in a proper case, permitthe fresh evidence tobe taken on the appeal. The principles emanating from the above authorities with particularreference tothemappear inasummaryform inPhipson on Evidence, 13th Edition, under the heading «Evidence in 20 rebuttal»at pages824and 825 under paragraph 33-92where we read the following: «33-92Evidenceinreply,whetheroralorbyaffidavit, must, as a general rule, be strictly confined to rebutting the defendant's case, and must not merely confirm that of the 25 plaintiff. Thus, where the latter had closed his case without calling a defendant who did not appear, the plaintiff was not allowed to call him in reply. So, in an action on a bill, where indorsement to the plaintiff was in issue,his case resting on mere proof of the indorsees handwriting, and the 30 defendant, denying knowledge of the transaction, or authority to sign, had tendered evidence that the plaintiff was too poor to give value, proof by the plaintiff to rebut this was excluded as being merely confirmatoryMoreover, where the issues on the claim and 35 counterclaim are identical, evidence inrebuttal cannot be called, as it must necessarily be confirmatory. With the judge's leave, rebutting evidence may be called by the plaintiff inanswer toevidence of the defendant in support of an issue, the proof of which lay upon him. The 40 228 1C.L.R. 5 TsiartasandAnother v.Taliotis SavvidesJ. discretion may still be exercised in the plaintiffs favour where the nature of the defence became apparent during cross-examination of his.own witnesses. The judge, however, hasa discretion toadmit further evidence either for hisown satisfaction orwheretheinterestsofjusticerequireit, and confirmatory evidence in rebuttal will generally be allowed when the partytendering ithasbeen misled or taken bysurprise». Asalready explained in the course of narrating the facts of the 10 present case the allegation that the agreement between the defendants and the third' party (the owner of the land) was rescinded was raised by the defendants. It was their contention that the plaintiff wasnot entitled totheagreed remuneration once theagreementhasbeen rescinded.Theburdenofproof wasupon 15 the defendants in thisrespect and obviously itwas for thisreason thattheysummoned thesellerofthelandtogiveevidenceontheir behalf. Once the proof of this allegation rested upon the defendants the trialCourt rightly,inourview,allowedthe plaintiff to call evidence in reply. In the result the appellants have not •20 convinced usthatthetrialCourtexerciseditsdiscretion wronglyor ina manner not allowed bythe rules of court. Theappeal,therefore, failsanditisherebydismissedwithcosts. Appeal dismissedwithcosts. •~/ 229