Bombay High Court

Gopal Changu Patil vs Hasuram Mahadu Patil on 24 November, 2011

Bench: R. M. Savant

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                                        1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                           CIVIL APPELLATE JURISDICTION




                                                    
                       CIVIL WRIT PETITION NO. 9388 2009

    Gopal Changu Patil                              ...      Petitioner

                  Versus




                                                   
    Hasuram Mahadu Patil
    and others                                      ...      Respondents




                                           
    Mr. P. S. Dani for the petitioner
    Mr. S. V. Gavand for the respondents.
                             ig      CORAM: R. M. SAVANT, J.

DATED : 24th November, 2011 P.C. :

1. Rule, with the consent of the parties, made returnable forthwith

and heard.

2. The issue which usually crops up as regards whose right is to

begin in a suit has once again cropped up in the present proceedings.

3. The petitioner who is original defendant takes exception to the

order dated 25th March, 2009 by which order, the trial Court, i.e. the

learned Civil Judge, Senior Division, Pen has directed the defendant to

step into the witness box and lead his evidence in the first instance.

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The petitioner also takes exception to the order dated 2nd September,

2009 by which the Review application filed by the petitioner came to

be rejected.

4. Shorn of unnecessary details, a few facts can be stated thus:

The respondents herein are the original plaintiffs who have filed

Regular Civil Suit No. 114 of 2008 for partition and for declaration. It is

the case of the plaintiffs that they have half share in the property

mentioned in para 1-B of the plaint. The plaintiffs have therefore,

sought partition and separate possession to the said extent. In the said

suit, the defendant has filed his written statement and also a counter

claim. It is the case of the defendant that there is no joint family

property as the ancestral properties had already been partitioned more

than 30 years back. The defendant claims exclusive right to the suit

property, which is the subject matter of the counter claim. In the light

of the pleadings of the parties, three issues were framed at Exh.21-B.

The issues are to the following effect:

i. Whether the defendants prove that there is a prior partition of the suit property ?

ii. Whether the plaintiffs are entitled for partition and to what share ?

iii. Whether the plaintiffs are entitled to the declaration ?

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          In the light of the defence        of the defendant in his           written

statement of there being a prior oral partition, the trial court, by the

impugned order dated 25th March, 2009, directed the defendants to first

step into the witness box and adduce his evidence. As mentioned

herein above the said order has been taken exception to in the above

petition. The defendant had therefore filed an application for review of

the impugned order dated 25th March, 2009 which application came to

be rejected by order dated 2nd September, 2009.

5. The question which arises for consideration is whether the trial

Court could order the defendant to lead his evidence first. For an

answer to the controversy, it would be necessary to advert to Order

18 Rule 1 and 3 of the Code of Civil procedure and more especially,

order 18 Rule 1 which reads thus:

"Rule-1: Right to begin.- The plaintiff has the right to begin

unless the defendant admits the facts alleged by the plaintiff and

contends that either in point of law or on some additional facts

alleged 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."

Rule 3. Evidence where several issues._ Where there are

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several issues, the burden of provi9ng 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."

6. It is therefore postulated in Rule 1 of Order 18 that ordinarily,

it is the plaintiff who has to begin by leading his evidence. The only

exception is where the defendant admits the facts alleged by the

plaintiff and contends that either in point of law or on some additional

facts alleged by the defendant the plaintiff is not entitled to any part of

the relief which he seeks, in such a case the defendant would have a

right to begin.

7. In so far as Rule 3 is concerned, the same deals with the

contingency where the burden of proving some of the issues is on the

defendant. In such as a case, a sort of safeguard is provided to the

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plaintiff, inasmuch as an option is given to the plaintiff to produce

evidence on those issues or reserve it by way of an answer to the

evidence produced by the other party. Therefore, in terms of Rule 3,

the plaintiff can exercise an option of producing rebuttal evidence to

the evidence of the defendant on those issues.

8. As indicated above, the question which is posed is whether the

Court has the power to direct the defendant to first step into the witness

box before the plaintiff leads his evidence. The issue is no more res-

integra and is covered by more than one judgment of this Court; a

reference could be made to the judgment of the learned Single Judge of

this Court (A.S. Oka, J.) in the case of Bhagirath Shankar Somani Vs.

Rameshchandra Daulal Soni, reported in 2007 (4) ALL MR 514.

The said judgment is the last in line of the judgments on the said

issue. The learned Judge, after considering the judgments of the learned

Single Judges of this Court, has concluded in paragraph 16 thus:

"16. Thus, the consistent view taken by this Court is that a

direction against the Defendant to lead evidence before the

Plaintiff leads evidence cannot be issued under sub rule 1 of

Order XVIII of the said code. The scheme of Rule 1 appears to

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be that as a normal Rule it is the privilege of the Plaintiff to

lead his evidence first. However, it enables the Defendant to

exercise the right in the contingency mentioned in the Rule.

The Plaintiff in a given case can make a statement before

the the trial Court stating that as the case is covered by

exception in Rule 1 Order XVIII of the said Code, he is

reserving his right to lead evidence in rebuttal after the

defendant leads his evidence. The said option can be

exercised in mofussil courts by the Plaintiffs by filing a pursis

to that effect. In a Court in which there is no practice of filing

pursis, the Plaintiff can make oral statement to that effect

which will be normally recorded in the roznama of the case.

After the Plaintiff exercises option, it is for the Defendant to

decide whether he wants to lead the evidence, the Plaintiff

can always lead evidence in rebuttal. As held by this Court,

the Court has no power to issue a direction to the Defendant

compelling him to lead his evidence before the Plaintiff

adduces his evidence. Only when the Defendant claims right

to begin under Rule 1 and the Plaintiff disputes existence of

such a right, the Court will have to decide the question

whether the Defendant has acquired a right to begin."

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9. This Court has, therefore, consistently held that the Court has no

power to issue direction to the defendant compelling him to lead his

evidence before the plaintiff adduces his evidence. It is only when the

defendant claims a right to begin under Rule 1 and the plaintiff disputes

the existence of such right, the Court will have to decide wither the

defendant has acquired a right to begin.

10. Though the learned counsel for the petitioner sought to draw

my attention to the other judgments of the learned Single Judges of this

Court, in my view it is not necessary to refer to those judgments as it

would unnecessarily burden this judgment. Moreover, all the said

judgments have been considered by A. S. Oka, J. in Bhagirat Shankar

Somani case(supra) which as mentioned hereinabove, is the last in line

of the judgments on the said aspect.

11. It is sought to be contended by the learned counsel Shri

Gavand appearing for the respondents i.e. the original plaintiffs that the

facts of the present case are slightly different, inasmuch as the counter

claim has been filed by the defendant and therefore, in terms of Order

6-A of Order 8 since the counter claim is to be tried as a suit, the order