Shri Sandip Sankarlal Kedia vs Smt. Pooja Sandip Kedia
2013 Latest Caselaw 183 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                      APPELLATE SIDE JURISDICTION




                                                                                       
                         WRIT PETITION NO.7615 OF 2013
                                     WITH




                                                               
                         WRIT PETITION NO.8555 OF 2013

    Shri Sandip Sankarlal Kedia                         -            Petitioner
              V/s.




                                                              
    Smt. Pooja Sandip Kedia                             -            Respondent

    Sharan Jagtiani, Adv. a/w. Pavan Patil, Adv. for the Petitioner in both 
    Petitions.




                                                   
    R.T. Lalwani, Adv. i/b. Prakash Mahadik, Adv. for the Respondent in 
    both Petitions.
                                
                                     CORAM :   MRS. ROSHAN DALVI, J.
                               
    Date of Reserving the Judgment                      :    11th October, 2013
    Date of Pronouncing the Judgment                    :    21st November, 2013

    J U D G M E N T

1. The parties are husband and wife. The trial in the petition

relating to their immoveable property is ripe for hearing. The issue with which the parties are at dispute is who would lead evidence first.

It may be mentioned that the procedural law in that regard is clear. It is contained in Order 18 Rules 1 and 2 of the Civil Procedure Code (CPC). For a matter which appeared to be rather inconsequential for a party who would require to prove a specific averment made, the

extent of contest in who would lead evidence first appeared to be initially rather needless but has proved to be an interesting point of law which requires reference, analysis and consideration of the salutary provision made with a particular aim and object and its appreciation and analysis by Courts.

2. The initial petition has been filed by the wife for

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declaration that she is the owner of one of the two flats purchased by the parties in their joint names for which she alone paid

consideration. Aside from such declaratory relief the other incidental

reliefs prayed for by her are in respect of the deletion of the husband's name from that flat, the recovery of possession by her partitioning the two flats so as to separate that flat and for compensation to be paid to

her for the use of that flat by the husband. The wife applied for interim relief of partition and injunction against the entry of the husband in that flat in the Family Court.

3. The most important aspect or fact is that the payment of

the entire consideration by the wife for that flat, being one of the two flats purchased by the parties, is admitted by the husband.

Consequently wife's petition that she be declared the sole owner of the flat would not call for much argument or even determination by the Court. She having paid the consideration for one of the two flats

which came to be used by the parties jointly would certainly be entitled to declaration in that behalf and consequently the partition of

the two flats so as to give her possession of that one flat. Pending such an exercise to be done in the petition or at its interim stage, the

user of the flat by the husband would certainly entail compensating the wife in that behalf - not in the position of a wife but in the position of a separate owner of half property being the one of the two flats.

4. Orders in that regard have come to be passed by the Family Court and later by this Court. The Family Court directed partition. This Court found nothing incorrect in such order. The husband seriously contested the partition. Hence this Court observed that though the order of the trial Court granting temporary partition could not otherwise be faulted in view of the compensation claimed by the

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wife, the wife could be compensated pending the petition.

5. The husband's contest to partition and compensation was

upon the main premise that he had returned the consideration paid by

the wife to the wife. If that was so the wife would no longer be an owner of the flat. Consequently she would not be entitled to claim recovery of the flat or to partition the two flats or even to be

compensated for the user of the flat by the husband.

6. If one scientifically culls out these aspects, the dispute between the parties becomes extremely narrow. It would be to see

the claim of the wife as the owner. The document shows the names

of both the parties. The wife has claimed the payment of the entire consideration. The payment is admitted. Nothing further need be

unearthed. The husband's claim is that he has repaid that consideration. That would turn the table. The husband would become the owner. The wife would have no rights.

7. The parties are not at dispute with regard to the claim of the wife to ownership based upon the payment of consideration which

is admitted. Consequently that fact need not be proved. On that admitted fact there would be no issue between the parties that would

be required to be framed by the Court and answered upon the evidence led by the parties. This elementary position in law is of abiding utility in the final disposal of the lis.

8. The fact that husband has repaid the consideration paid by

the wife to the wife is not admitted. It is disputed. It, therefore, becomes an issue between the parties and an issue would have to be framed and answered upon the evidence led in that behalf. The claim of the husband that he has repaid the consideration to the wife would have to be shown and proved by him. It would have to be shown prima facie when the interim relief is applied for and has to be

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granted. It would have to be proved conclusively at the final hearing of the petition. The onus for proving such fact has entirely upon the

husband.

9. Consequently the aspects for consideration can be divided into two parts. The admitted aspects and the disputed aspects. The admitted fact is the payment of the consideration by the wife. The

disputed fact is the return of that consideration to the wife by the husband.

10. Four clear provisions of law would be applicable. These

would relate to the (1) Recording of admissions, (2) framing of issues

11.

(3) leading of evidence and (4) how the evidence has to be led.

Recording of admissions

Under Order 10 Rule 1 of the CPC the Court shall ascertain whether the Defendant admits or denies the allegations of fact in the plaint. The Court shall record such admissions and denials.

12. If upon considering the case of the parties at an interim hearing it becomes evident that a proposition of fact has been

admitted, nothing further need be done except recording such admission as had been done in this case.

13. Under Order 12 Rule 6 of the CPC where admissions of fact are made the Court has to make such order and give such judgment as it may think fit, having regarding to such admissions.

14. In this case the fact that the wife paid the entire

consideration initially has been admitted. But for the contention of the husband a judgment on admission would have had to be passed for partition and separate possession of the said flat in favour of wife.

15. Framing of issues Under order 14 Rule 1 (1) of the CPC issues would arise only when a material proposition of fact or law is affirmed by one

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party and denied by another.

16. Under Order 14 Rule 1 (5) the Court is required to

ascertain upon what material proposition of fact or law the parties are

at variance and shall thereupon proceed to frame and record the issues.

17. Under Order 15 Rule 1 of the CPC if the parties are not at

issue on any question of law or fact the Court may at once pronounce judgment.

18. It may be mentioned that if the case of the wife in her

petition that she has paid the entire consideration for one of the two

flats was simplicitor admitted and accepted by the Defendant, parties would not have been at issue at all because there would have been no

material proposition of fact which was denied by the Defendant and the Court would not have framed any issue. It is only because the husband, as the Respondent in the Petition, has averred and alleged

that he had repaid the entire consideration to the wife, which was disputed by the wife, that the parties came to have some dispute and

were at issue as to the question of that fact. Because the wife disputed that fact, which was the material proposition of fact made by

the husband, that the issue arose. The Court, therefore, would have to raise, frame and determine that issue.

19. As aforesaid if that material proposition was not made by the husband the wife would have to be declared the owner of the flat

and granted the necessary declaratory and other reliefs. Similarly, if the husband proved the repayment of the consideration the wife would not have entitled to any relief. There is no middle path. One proposition is admitted and does not have to be proved. The other proposition is a disputed and has to be proved.

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    20.           The leading of evidence

Under Section 5 of the Indian Evidence Act, 1872

evidence is required to be given of facts in issue and only relevant

facts in any suit or proceeding "and of no others".

Under Section 58 of the Indian Evidence Act, 1872 admitted facts need not be proved except were specially required to

be proved otherwise than by such admission.

It would be an empty exercise. In civil trials admitted facts do not call for evidence as they do not call for framing issues. They

cease to be relevant facts in the determination of the issue before the Court.

21.

In this case the wife does not have to prove that she paid

the entire consideration because the husband admits that she paid entire consideration for one of the two flats. The flats are in their joint names. Hence the wife does not even have to prove that the

document of title is in her name. The document of title itself is admitted to have been executed.

22. What evidence, therefore, would there be for any parties to lead or for the Court to record with regard to the fact of the wife

having paid consideration for one of the two flats? None.

23. Because the husband claims that he repaid that amount he must show it. If the wife admitted the repayment, she would have been out of Court. If the wife denies it, the husband would have to

prove it.

24. The husband has not shown the fact of repayment by any documentary evidence. That has been considered whilst granting the interim relief. The documents produced by the husband specifically did not show the repayment. It may be stated that some payment showed tax deducted at source which ran counter to husband's case

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that that repayment was for the repayment of the consideration in respect of the flat which came to be considered whilst granting

interim relief. The husband may or may not have any other evidence

to prove the statement of fact of repayment of consideration.

25. That is all that the Court would have to see. Once that is shown and proved nothing further would be required in the trial. It

is, therefore, that this Court specified these facts and what only the parties would require to do in the trial. It would not be inappropriate to set out that part of the order and direction in paragraph 13 of the

order dated 2nd August, 2011 :

13. The title of the Petitioner is admitted. The husband's case is that he has returned consideration amount paid by the

wife. Therefore, the husband shall have right to begin the evidence. It will be for the husband to prove that the consideration amount paid by the wife has been returned by the husband to her. The husband alone shall have to give

evidence in that behalf. The husband has filed his written statement. The learned Judge will frame the necessary issues

and proceed with the trial upon the premise that the husband has right to begin. The evidence would have to be taken in the suit accordingly.

26. How the evidence is to be led.

Under Order 18 Rule 1 of the CPC the Plaintiff has the right to begin the evidence unless the Defendant admits the facts

alleged by the Plaintiff and contends that either any 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 right to begin.

27. Under Order 18 Rule 2 (1) of the CPC the party having the right to begin shall state his case and produce his evidence in

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support of the issues which he is bound to prove.

28. Under Order 18 Rule 2(2) of the CPC the other party

shall then state his case and produce his evidence.

29. The provision is, therefore, clear and mandatory. It is also very salubrious. It augurs for sound, efficient and clean case management.

30. A plaintiff who alleges a fact which is disputed would have to prove it. To prove that fact the Plaintiff would have to lead evidence. He would have to lead evidence first.

31. That exercise is called "the right to begin". It may be taken

to be a privilege to begin his evidence to prove his proposition of fact. But if the fact is admitted, there is nothing required to be proved.

There would be no issue and there need be no evidence. If there is nothing further stated by the Defendant it must culminate into the judgment. It would require the Court to at once pronounce judgment

- on admission. That would, of course, be upon considering the law in that behalf. On a given law, the Plaintiff may not be entitled to any

relief. The Defendant may not dispute the Plaintiff's facts and yet contend that as per law the Plaintiff would not be entitled to any

relief. The Court would consider the facts shown by the Plaintiff, the law shown by the Defendant and pronounce judgment.

32. The Defendant may not dispute the Plaintiff's facts but may show additional facts and contend that based upon such additional

facts the Plaintiff is not entitled to any relief. The Court would then consider those additional facts. The Court would not have to dwell into the facts shown by the Plaintiff because they are admitted by the Defendant. The Court would have to only consider the additional facts shown by the Defendant which are not admitted by the Plaintiff. It is only upon those additional facts that issues would arise, would

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have to be framed and determined. It is only on those additional facts, therefore, that evidence would have to be led.

33. Consequently it is only the Defendant who would have to

lead such evidence.

34. The Plaintiff would have no evidence to lead because the facts alleged by the Plaintiff are admitted by the Defendant and

admitted facts need not be proved. (Section 48 of the Evidence Act) No issue would arise because the proposition of fact stated by the Plaintiff is not denied by the Defendant (Order 14 Rule 1 of the

CPC).

35.

One would, therefore, not only appreciate but admire the poetry in Order 18 Rule 1, the sound proposition of law that tidies the

creases in the pleadings of the parties. The Courts are enjoined to see the pleadings as a whole, to consider the Plaintiff's case, the facts alleged by the Plaintiff, whether they are admitted or disputed and to

narrow down the controversies calling into use Order 10 Rule 1 of the CPC. It is then that the Court may pass judgment on admission

under Order 12 Rule 6 of the CPC or frame issues under Order 14 Rule 2 of the CPC and proceed with the evidence to determine the

issues.

36. Given the acrimonious litigation between parties, this Court specifically felt that the sound procedural mandates would not be followed and hence specifically directed what the parties must do

at the hearing of the petition in paragraph 13 reproduced above.

37. It may be mentioned that that order came to be challenged in SLP No.30623 of 2011. The SLP has not been entertained except for modifying the terms of payment of compensation pending the Petition of the wife in the Family Court.

38. Thereafter a Review Petition came to be filed by the

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husband which has been unconditionally withdrawn.

39. The Family Court proceeded with the trial in terms of the

direction in paragraph 13 of this Court's order dated 2 nd August, 2011

which came to be passed in view of narrowing down the controversy, which exercise was done by this Court to allow agitation only for the single material proposition of disputed fact between the parties. The

Family Court framed issues on 16th January, 2013. (The issues have not been shown to this Court but it is hoped that the issues have been framed upon the only aforesaid material disputed fact except for other

separate issues such as issue of jurisdiction, limitation, if any, the onus

40.

of proving which also would lie on the husband.) The Family Court thereafter adjourned the petition thrice

for "document and witness list". The Family Court kept the petition on board on 11th March, 2013 for "chief of the Respondent - husband".

41. The husband was neither ready nor available for his evidence - the only evidence which was required to be led. The

husband's counsel is shown to have stated to Court that he "did not wish to lead evidence at this stage". Counsel on behalf of the wife

pointed out that the husband would have to lead evidence first as directed by this Court. It was also pointed out to Court that the order observed that it would be for the husband to prove that the consideration amount paid by the wife was returned to husband and

that "husband alone shall have to give evidence in that behalf". It was, therefore, contended by the wife that the husband was duty bound to start evidence. The husband surprisingly contended that he did not "seek to assert the right to begin evidence" and hence he did not want to lead evidence at that stage. The Court was also informed why the husband did not assert what he considered his "right" to begin

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evidence and that was because he was not able to give instructions to his advocate to prepare his evidence as he was in Dubai and was not

able to come to Mumbai and hence he claimed to "waive his right" to

proceed with the evidence at this stage and reserved to do so "at a later stage". This was diametrically opposite of what this Court had specifically directed.

42. The Family Court considered that this Court clearly stated that the fact of proving that the consideration amount paid by the wife was returned by the husband lies upon the husband and

therefore, the husband alone would have to give evidence in that

behalf. Hence the Family Court concluded that in view of those observations the husband could not take a stand that he did not want

to lead evidence at that stage and observed that the onus of establishing that the amount of consideration was returned consequently lay upon him and that that was the material point going

to the root of the matter. The Family Court, therefore, directed the husband to lead evidence first.

43. The order of the Family Court was in terms of directions of this Court. The directions of this Court have been accepted and

confirmed by the Supreme Court since the SLP was not inclined to be entertained except for modification of the terms of the payment of compensation to the wife pending the petition.

44. The Family Court adjourned the petition for the husband's

evidence to be led first on 30 th April, 2013 and five times thereafter. The husband never budged. On 24th July, 2013 after three other adjournments for the husband to lead his evidence first, the Court recorded that it was the 5th date of the hearing. The husband had not given instructions to his advocate to prepare his affidavit of evidence. Last chance was given to the husband to submit his evidence and to

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remain present for cross examination on 22nd August, 2013.

45. Both the orders of the Family Court have been challenged

in Writ Petition No.7615 of 2013.

46. On 22nd August, 2013 the husband again applied for adjournment on the ground that he had filed two writ petitions in this Court and because the parties were referred to mediation the Court

observed that the husband's application was to avoid proceeding with the matter and hence rejected it. The Family Court rightly observed that unless this Court has stayed proceedings, the Family Court was

constrained to proceed with the matter. It observed that in view of

the last chance given to the husband to file his affidavit of evidence which was not filed, it had to proceed to close the evidence and

rejected the application for adjournment. The Family Court closed the evidence of the husband. The Family Court directed the wife to file her evidence on the next date. Her evidence would be filed only if

required on the question of payment of the compensation amount which she claimed. (unless, of course, she only applied for partition of

the disputed flat and gave up her prayer for compensation for the user of the flat by the husband).

47. The order dated 22nd August, 2013 has been challenged in Writ Petition No.8555 of 2013.

48. It can be seen that the only aspect in the lis is whether the wife has paid consideration (the admitted fact) and whether the

husband has returned the consideration (the disputed fact). Only the second fact would have to be proved. It would have to be proved only by the husband. If it is proved by the husband nothing would survive. If it is not proved by the husband, the wife would be the owner as having paid consideration for the disputed flat. She would get the reliefs upon such ownership. That would be the relief of partition or

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compensation and, of course, the ancillary reliefs of removing the husband's name from the document of the title of the suit flat, (his

name would remain in the other flat purchased by the parties),

recovery of possession by the wife and the injunction against the entry of the husband in the suit flat.

49. It may be mentioned that it is for such cases (and they are

quite a few in our Courts (that the salutary provision contained in Order 18 Rule 1 of the CPC had been made at least since 1908. The beauty of that provision must be gauged upon a case study such as

this. It may be mentioned that there are numerous cases for

mandatory reliefs popularly called money matters in which the Plaintiff sues upon a document. The defense of the Defendant may be

that the amount under the document is returned. In such cases the execution of the document is admitted. The document does not have to be proved. There is, therefore, no issue upon whether the money

was lent or advanced. There need be no evidence upon the execution of the document. However, upon the Defendant's case that the

amount under the document has been returned, partly or fully, would have to be proved by the Defendant if that fact is disputed by the

Plaintiff.

50. Similar illustration may be of suits filed for goods sold and delivered. The Defendant may admit that the goods were sold and the price was payable, but may allege that the goods were of inferior

quality or defective, not as per description or sample or short delivered and claim his right under the Sale of Goods Act, 1930. In such cases it is not for the Plaintiff to prove the delivery of the goods. It is only for the Defendant to prove the inferior quality of the goods, short supply or the like.

51. It is upon such dispute that the parties would have a

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dispute. It would be the material proposition of that fact upon which the issue would be framed. It would be for the Court to ascertain

what the parties admitted and denied. It would be for the Defendant

alone to lead evidence about the return of the amount of consideration under such document. The Plaintiff would require to give evidence, if at all, only if the Defendant's evidence is led. The

Defendant would have the obligation, responsibility, duty and liability to prove that material proposition or fact made by him as an additional fact in his written statement. It is this obligation,

responsibility, duty and liability which is termed the "right" to begin.

The expression "right to begin" in the sub title of Order 18 Rule 1 of the CPC and in its contents is, therefore, not a right such as a

privilege which can be reserved or waived. It would have to be exercised if the additional fact alleged by the Defendant upon which the issue has to be framed has to be proved by the Defendant for the

issue to be determined by the Court. It is, therefore, that this enjoinment is laid down in Order 18 Rule 2 of the CPC. In such a

suit on the date of the hearing under that provision the Defendant who has "the right to begin" is enjoined to state his case and produce

his evidence in support of the issue which he is bound to prove if he would get the Plaintiff non suited. The expression "shall" in Order 18 Rule 2 of the CPC makes this abundantly clear. Hence Order 18 Rule 1 of the CPC lays down the situation in which the party would

have a right (which is actually his obligation to begin his evidence.) Order 18 Rule 2 of the CPC lays down that that party shall produce such evidence to prove an issue arising from the facts alleged by him.

52. It is upon such position in law that three judgments of the learned Single Judges of this Court relied upon by the husband would have to be considered taking into account yet another judgment of

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another learned Single Judge of this Court which has, in the passing, referred to aforesaid provision.

53. In the case of M/s. Haran Bidi Suppliers & Anr. Vs. M/s.

V.M. & Co., 2001 (1) ALL MR 173, the provision of Order 18 Rule 1 came to be considered. In that case out of 14 issues only issue No.4 cast a burden on the Plaintiff. The trial Court directed the Defendant

to lead evidence first and allowed the Plaintiff to rebut the evidence later. It was the case of the Defendants that in view of certain arrangements they were utilising the trademark of the Plaintiff.

"Certain arrangements" was the additional fact shown by the

Defendant. The Court's directions came to be challenged. The learned Single Judge of this Court considered Order 18 Rule 1 of the

CPC but not Order 18 Rule 2 of the CPC. On a plain language of Order 18 Rule 1 of the CPC it was observed that it was only an enabling provision entitling the Defendant to the right to begin. It

was also observed that the provision could not be interpreted such that the Court would be competent to direct the Defendant to enter

the witness box before the Plaintiff led evidence in support of his case.

54. It may be mentioned that the later observation is not

possible if the mandatory language of Order 18 Rule 2 (1) and (2) of the CPC is seen. Consequently upon such additional facts which the Defendant would have to prove, the Defendant would have the right to begin. The Defendant, who has the right to begin "shall" state

his case and produce his evidence which he bound to prove. In that case the Defendant would have to prove the arrangement of utilising the trademark of the Plaintiff.

55. In the case of Gouri Good Products, Nagpur Vs. Priya Trading Co., Nagpur, 2002 (4) Mh.L.J. also upon reference to the case of M/s. Haran Bidi (Supra) it has been held that Order 18 Rule

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1 is only an enabling provision for granting the Defendant to right to begin and that it does not confer power upon a Court to direct the

Defendant to begin such evidence. That was the case of recovery of

money under an agreement. The Defendant made a part payment and the Plaintiff sued for the balance. The Defendant accepted and admitted the execution of the agreement as also the payment of part

amount by two installments. The Defendant, however, alleged undue influence and coercion. The Defendant had the burden of proving that allegation. The Court observed that it would be appropriate to

considered the purport of Order 18 Rule 1 and 2 of the CPC.

However, it considered Rule 1 but not Rule 2. In fact the Court observed that Order 18 Rule 2 was not attracted. The Court observed

that Order 18 Rule 1 of the CPC does not speak of the power to be exercised by the Court in the regard. However, the Court has not considered that the mandate under Order 18 Rule 2 of the CPC

directs the Defendant to produce his evidence by the word "shall" and consequently the Court has not only the power but the duty to call

upon the Defendant to do what the procedure demands.

56. Again in paragraph 12 of the Judgment after citing Order

18 Rule 1 and 2 of the CPC the Court has considered the right of the Defendant under Order 18 Rule 1 of the CPC without the corresponding power of the Court thereunder for issuing the necessary directions. In fact the Court has observed that the analogy

of the right under Order 18 Rule 1 of the CPC cannot be stretched further to hold that the Court also had the power to issue directions though that sounded "little harsh". The Court, however, also considered the inherent power of the Court U/s. 151 in paragraph 12 of the judgment.

57. Needless to state that the procedure under Order 18 Rules

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1 and 2 of the CPC is not empty formality. It is for true and clear management and administration of the case before the Court. It is for

leading only the most relevant and necessary evidence by the party

upon whom the burden of proving an issue, upon his own allegations denied by the other party, lies.

58. In this case the Court has in some detail dealt with Order

18 Rule 3 of the CPC also. Though that does not apply to the facts of this case as there would be the only issue relating to the repayment of consideration by the husband, it would be a guiding factor in

appreciating who must lead evidence first. Order 18 Rule 3 of the

CPC deals with cases of several issues, the burden of proving some of them lies on one party and some on the other. The party beginning

evidence is allowed to lead evidence only on those issues for which the burden lies upon him and reserve the evidence on the other issues by way of rebuttal to the evidence produced by the other party. Such

party is then allowed to produce evidence on those issues after the other party has produced all his evidence. This specified procedure

also reflects and manifests the need to give evidence as per burden which lies upon the party. It does not require only the Plaintiff to give

all evidence first. In view of the fact that admitted facts need not require to be proved, no plaintiff need give evidence of any admitted fact. The distinction in the actual tendering of evidence, therefore, becomes very stark when one sees the case of many issues. After the

Plaintiff has to lead evidence upon all the issues, the burden of which lies upon him to prove and not the other issues and the Defendant is enjoined to give evidence upon all the issues, the burden of which lies upon him to prove, allowing the Plaintiff the right of rebuttal thereafter.

59. The same analogy has to be applied in case of single issue.

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60. The same procedure has to be followed in case of one issue of the Plaintiff and one issue of the Defendant. If the facts stated by

the Plaintiff are admitted and there is no issue of the Plaintiff there is

none for the Plaintiff to prove. Of course, if the Plaintiff has to prove a single issue because the fact stated by the Plaintiff is denied by the Defendant, he would certainly have right (i.e. obligation) to begin;

not otherwise.

61. In the later case of Bhagirath Shankar Somani & Anr. vs. Rameshchandra Daulal Soni & Anr., 2007 (4) Bom C R 87, upon

considering the aforesaid two judgments in the case of Haran Bidi

(Supra) and Gouri Food, (Supra) the Court accepted the right of the Defendant and lack of power of the Court as binding law under Order

18 Rule 1 of the CPC. That was a case in which ownership right was claimed by the Plaintiff. The Plaintiff sued on trespass and applied for possession. The Defendant claimed that the Plaintiff was merely a

benamidar and that the Defendant was the real purchaser of the suit property. It was contended that the father of Plaintiff No.1 had

advanced loan to Defendant and the property was acquired in the name of the Plaintiff while the consideration was paid by the

Defendant. The Plaintiff argued that if the benami transaction is not established, the possession must follow and hence the direction to the Defendant to lead evidence for proving benami nature of the transaction was in order and consequently the Court as the power to

issue such direction.

62. In paragraph 12 of the judgment this Court considered that Order 18 Rule 1 recognizes that ordinarily it is the Plaintiff who has a right to begin and the only exception is when the Defendant admits the facts alleged by the Plaintiff. The Court also considered Order 18 Rule 3 in which the burden of proving some issues could be on the

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Defendant in which case the right could be exercised by the Plaintiff not to lead evidence on those issues before the Defendant led his

evidence but to reserve it by way of rebuttal after the Defendant

produced all his evidence. After considering Order 18 Rule 3 the Court observed that the issue whether the Court can give direction to the Defendant to lead his evidence first was not res integra.

63. In the case of Kumudini Damodar Magar Vs. Bhushan Damodar Magar, 2004(3) Mh L J 214 also the Court considered the case of Bhagirath (Supra). The question before the Court was the

order of recording evidence under Order 18 Rule 3(a) and 16. In

paragraph 13 of the Judgment this Court observed the right or privilege of a party to begin first. The Court held that it would

depend upon the pleadings of the parties that the parties may claim that privilege. The court contrasted that case with the case under Order 18 Rule 1 of the CPC when all the allegations of the Plaintiff

were admitted and some additional facts were stated upon which the Plaintiff would not be entitled to get relief. In that case the defendant

admitted the facts of the Plaintiff but did not state any additional facts upon which the Plaintiff would not be entitled to relief. The

Defendant claimed to be mother of the Plaintiff. The Plaintiff claimed that the Defendant was her mother. The Defendant wanted to give evidence in that behalf as against the other Defendants. That was not allowed because it was observed that if that Defendant has accepted

the Plaintiff's case and has stated some additional facts upon which the Plaintiff would not be entitled to relief, the Defendant would have had the right to begin with the permission of the Court.

64. The case of Kumudini (Supra) therefore, shows the settled difference between merely examining the witnesses out of turn or calling upon a party out of turn to lead evidence and the case were

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upon the specified mandate in the CPC a specified party would have the right or the privilege to lead evidence.

65. However, that right or privilege must extend to duty or

obligation. That is because of the burden to proof. A party upon whom the burden of proof lies cannot lie back and require another party to give evidence upon whom no burden of proof lies. Burden of

proof would not lie upon a party whose averments and statements of facts are admitted. The burden or proof would have to be discharged by the party who makes additional statement of facts which are

disputed. There is then no question of leading of any evidence

remaining only as a right or privilege. It becomes a duty and obligation to discharge that burden. If the burden is not discharged

that issue cannot be proved. For that issue to be proved only that party would require to tender evidence, oral and documentary. The other party need to do nothing.

66. Consequently it is not possible to accept that Order 18 Rule 1 of the CPC is a mere enabling provision which merely entitles

to Defendant to a right. It is a provision which sets out who must begin the evidence. It specifies that usually the Plaintiff has right to

begin. This is made clear by the word "unless" in Order 18 Rule 1 of the CPC. Upon the admission of the Plaintiffs fact and upon said additional facts it specifies that the Defendant has right to begin and it is only in those cases that the Defendant must begin his evidence. The

expression "right" therefore cannot be taken to be only moral or legal entitlement to have or do something as per its dictionary meaning or a power, privilege, or immunity secured to a person by a law as per its legal meaning.

67. It is, therefore, erroneous to suggest, as has been contended on behalf of the husband in this case, that though the

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husband has right to begin and this court used the correct expression "right", the husband can waive that right or reserve it. It would be

case mismanagement to call upon the Plaintiff to tender some

evidence whether required or not, whether relevant or not, whether the onus lies upon the Plaintiff or not merely because he is the Plaintiff. The Court would not have gone that extra mile enjoined

under Order 10 Rule 1 of the CPC and would proceed without application of its mind, merely requiring the Plaintiff and the Defendant to queue up in that order for leading evidence.

68. An evidence is a statement of disputed material facts and

nothing more. An evidence is not an essay. It does not require to bear an introduction, a main body and a conclusion. It only must

show relevant disputed facts which the Court must appreciate to accept or reject such oral evidence. Hence recording of evidence requires the protocol under Order 18 Rule 1 of the CPC and the

mandate under Order 18 Rules 1 and 2 of the CPC to be followed. The Courts, duty is, therefore, to see that it is so followed. The Court,

therefore, has the power and the duty to pass directions upon the application of any of the parties as also by itself upon considering the

separate averments of the parties in the pleadings to efficiently direct the order of leading of evidence as the legislated discipline of work.

69. It may be mentioned that in this case this Court passed directions that it considered were enjoined to be passed under Order

18 Rules 1 and 2 of the CPC as shown in paragraph 13 above. That order has been accepted by the Supreme Court. The consequential directions by the Family Court based upon that order accepted by the Supreme Court cannot be faulted.

70. The Family Court was right in rubbishing the claim of the husband that he did not wish to lead evidence "at this stage". There

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was no other stage. There was no better stage. The evidence had begun. Only that issue of fact had to be determined. The husband

had to discharge the burden that lay on him upon his case or repaying

the wife the consideration that she paid for the disputed flat, the onus of which lay squarely upon him. The Family Court was also right in granting the last chance to the husband in the order dated 24 th July,

2013. In fact this Court may hasten to add that the last chance was rather delayed. The most favoured "right" of a party in our justice system is the "right" to delay the trial. The Family Court granting five

adjournments to the husband to prove his case was not even

warranted. The Family Court was again right in accepting the last chance and closing the evidence of the husband since the husband

neither appeared nor filed his affidavit of examination in chief nor in any manner showed any evidence to prove his tall claim of repayment of the entire consideration of the disputed flat to the wife and in fact

gave no instructions whatsoever to his advocate.

71. Discipline of work which is the only casualty in the Courts

upon mollycoddling a party by way of numerous adjournments to even give instructions to his own advocate, to show the proof of his

own statement of fact and allowing him to liberty to misuse the Court's indulgence by insisting upon the wife giving evidence when there is no evidence to lead would negatively reflect upon the Court itself. This Court is gratified to note that at least as late as on 22 nd

August, 2013 the Court called it a day and closed the husband's evidence. The wife would lead evidence, if any, that she would require to lead. The proceeding which commenced upon a truthful case admitted by the husband would see its end upon additional case of the husband that never is shown.

72. This is, therefore, not a case where the wife must be

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enjoined to lead some evidence no matter what as the husband has the "right to begin" and not the "right to delay" the trial.

Consequently all the aforesaid orders of the Family Court, Mumbai

dated 26th March, 2013, 24th July, 2013 and 22nd August, 2013 are correct and confirmed. Both the Writ Petitions are wholly misconceived and frivolous and accordingly dismissed with costs fixed

at Rs.50,000/-. The Family Court shall proceed with the trial in accordance with the aforesaid law as already directed.

73. This order is stayed for two weeks.

                                  ig                     ( ROSHAN DALVI, J. )