Bombay High Court

Laxman Kisan Chavan vs Nandkumar Kisanrao Chavan And Others on 31 July, 2025

2025:BHC-AUG:20162
                                           (1)             wp-871-2025.odt



                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD
                              WRIT PETITION NO.871 OF 2025

               Shri. Laxman Kisan Chavan,
               Age: 53 years, Occu: Agri,
               R/o. Khokar,
               Tal: Shrirampur, Dist: Ahmednagar           ..Petitioner
                                                        (Orig. Plaintiff)
                      Versus

               1.     Shri. Nandkumar Kisanrao Chvan,
                      Age: 45 years, Occ: Agri,

               2.     Sau. Meera Nandkumar Chavan,
                      Age: 40 years, Occ: Agri,

               3.     Sau. Neelam Nandkumar Chavan,
                      Age: 22 years, Occ: Agri,

               4.     Nilesh Nandkumar Chavan,
                      Age: 20 years, Occ: Agri,

               5.     Sau. Mangal Machindra Kale,
                      Age: 55 years, Occ: Agri,

               6.     Sau Hirabai Dattatraya Kale,
                      Age: 45 years, Occ: Agri,

               7.     Sau. Chhaya Rajendra Kale,
                      Age: 32 years, Occ: Agri,

               8.     Smt. Bebi Karbhari Chavan,
                      Age: 50 years, Occ: Agri,

               9.     Shri. Aniket Karbhari Chavan,
                      Age: 30 years, Occ: Agri,

               10.    Shri. Abhijeet Karbhari Chavan,
                      Age: 28 years, Occ: Agri,

               11.    Sau. Manisha Aniket Chavan,
                      Age: 27 years, Occ: Agri,

               12.    Sau. Deepali Abhijeet Chavan,
                      Age: 27 years, Occ: Agri,
                      All R/o. Khokar,
                             (2)                         wp-871-2025.odt



      Tal: Shrirampur, Dist: Ahmednagar               ..Respondents
                                                  (Orig. Defendants)
                                 ...
Mr. R. A. Tambe, Advocate for Petitioner.
Mr. M. K. Bhosale, Advocate for Respondents.
                                ...

                          CORAM : S. G. CHAPALGAONKAR, J.

Reserved On : 16th JULY, 2025.
Pronounce On : 31st JULY, 2025.

JUDGMENT:

1. Rule. Rule made returnable forthwith. With consent of the

parties, matter is taken up for final hearing at admission stage.

2. The petitioner/original plaintiff impugns order dated

16.12.2024 passed by Civil Judge Senior Division, Shrirampur

below Exhibit-197 in Regular Civil Suit No.108/2013, by which

prayer of petitioner/plaintiff to direct defendants to conclude

argument before plaintiff has been rejected.

3. The plaintiff instituted Regular Civil Suit No.108/2013 before

Civil Judge Senior Division, Shrirampur claiming relief of

declaration, perpetual injunction and fixation of boundaries. The

defendants appeared in suit and refuted contents of plaint.

Eventually, issues were framed. The plaintiff recorded his

evidence and filed Evidence Close Pursis dated 07.07.2024 below

Exhibit-185. Thereafter, respondents/defendants recorded their

evidence and filed Evidence Close Pursis dated 07.08.2024 below

Exhibit-189.

(3) wp-871-2025.odt

4. At this stage, petitioner filed application below Exhibit-197

contending that petitioner has recorded his evidence first.

Thereafter, evidence of respondents is recorded. The matter is at

the stage of arguments. Therefore, as per provisions of sub-clauses

(2) and (3) of Rule 2 of Order XVIII of Code of Civil Procedure,

defendants who have closed their evidence last in order are

required to conclude arguments. Thereafter, plaintiff would have

right to put his final submissions on entire case. Accordingly,

directions were sought against defendants to conclude arguments

before plaintiff. The learned Trial Court rejected petitioner's

contentions observing that there is no mandate under law to direct

defendants to conclude arguments first. The defendants cannot be

compelled to begin with their arguments reserving rights of

plaintiff to argue on whole case. According to Trial Court,

application tendered by plaintiff is an attempt to protract

litigation.

5. Mr. Tambe, learned Advocate appearing for petitioner invites

attention of this Court to Rule 2 of Order XVIII of Code of Civil

Procedure and contends that plaintiff, who has right to begin once

states his case and produce his evidence in support of issues, then

other party/defendant is under obligation to state his case and

produce his evidence and address Court generally on whole case.

In last, plaintiff/party beginning may reply generally on whole (4) wp-871-2025.odt

case. According to Mr. Tambe, defendants have recorded their

evidence after plaintiff. Therefore, defendants are under obligation

to argue matter first. The plaintiff can reply thereafter generally

on whole case. He would, therefore, urge that application tendered

before Trial Court at Exhibit-197 was in tune with aforesaid

provisions, which ought to have been allowed. In support of his

contentions he relies upon judgment of Single Judge of this Court

in case of Gajanan Dhondu Dalvi Vs. Trishul Construction

Company and another1 and judgment in case of Sharanappa

Alias Sharanabasappa Tipama Vs. Veerappa R.

Maranbassari2.

6. Per contra, Mr. Bhosale, learned Advocate appearing for

respondents submits that provisions of Rule 2 of Order XVIII of

Code of Civil Procedure are not mandatory. According to him, sub-

clauses (2) and (3) of Rule 2 of Order XVIII are enabling provisions

and no party has right to seek direction from Court against other

party to argue matter first, in point of time, converse to chronology

of right to begin. In support of his contentions he relies upon

judgments of Supreme Court of India in cases of Jami Venkata

Suryaprabha and Another Vs. Tarini Prasad Nayak and

Others3 and Shivaji Laxman Palaskar and Ors. Vs. Sau.

Kamal Raosaheb Shipalkar and Ors.4.

1 1995 (1) Mh.L.J. 695.

2 1968 Mh.L.J. 629.

3 2024 SCC OnLine SC 3862.

4 2019 (1) ABR 159.

(5) wp-871-2025.odt

7. Having considered submissions advanced, question that

arises for consideration before this Court is whether provisions of

sub-clauses (2) and (3) of Rule 2 of Order XVIII of Code of Civil

Procedure are mandatory in nature and whether any party can

insist upon other party to begin first or argue matter first. The

relevant part of Rule 2 of Order XVIII of Code of Civil Procedure

reads thus:

"2. Statement and production of evidence-

(1) On the day fixed for hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.

(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.

(3) The party beginning may then reply generally on the whole case."

8. Plain reading of aforesaid provision would show that

generally plaintiff has right to begin. However, in exceptional case

where defendant has admitted contents of plaint and puts his

defence on the point of law or other additional facts, defendant has

right to begin. Rule 2 of Order XVIII deals with stage of hearing

and stipulates that party having right to begin shall produce his

evidence in support of issues, then other party shall state his case (6) wp-871-2025.odt

and produce his evidence and may then address the Court

generally on the whole case. Sub-clause (3) of Rule 2 of Order

XVIII prescribes that party beginning may reply generally on

whole case. Plain reading of sub-clauses (2) and (3) of Rule 2 of

Order XVIII shows that provisions are for convenience and does not

put any obligation upon any party so far as chronology of

addressing Court on continuation of evidence. Generally it is true

that defendant, who laid evidence later in point of time, is expected

to argue matter in continuation of evidence and plaintiff/party

beginning may reply generally on whole case. Therefore, looking to

the chronology under sub-clauses (2) and (3) of Rule 2 of Order

XVIII, contention of petitioner is acceptable that defendants may

have argued their case in continuation of their evidence leaving

right in favour of petitioner/plaintiff to reply generally on whole

case. Mr. Tambe has rightly relied upon judgment of Single Judge

of this Court in case of Gajanan Dhondu Dalvi (supra), wherein

this Court observed in paragraph no.6 as under:

"6. In the present case, I am concerned with Rule 2, which lays down the general rule that the one, which has right to begin, must "address the Court generally on the whole case".

It further provides that the party beginning may then "reply generally on the whole case". A careful reading of Rule 2 clearly shows that the said Rule proceeds on the principle that the party, which has involved in the evidence first must address the Court last. Thus, on a plain reading of the provisions of the said Rule, it is the defendant, who has to open the argument first."

(7) wp-871-2025.odt

9. Further in last paragraph Single Judge of this Court

observed as under:

"9. As already indicated, Rule 2 of Order 18 clearly stipulates that the party giving the evidence first has the right to address the Court last and the defendant having led his evidence last, he is required to address the Court first. In the result, the Civil Revision Application succeeds. The order dated January 13,1995 passed by the City Civil Court is set aside. The parties are directed to appear before the City Civil Court on February 16,1995. Needless to say that the defendant shall open his argument first and thereafter the plaintiff shall address the Court in accordance with Rule 2 of Order 18. Civil Revision Application is disposed of accordingly with no order as to costs."

10. In view of aforesaid legal position, second issue that arises

for consideration is whether plaintiff can insist upon defendants to

argue matter first and whether Court can issue such directions.

The aforesaid issue is no more res-integra. The Supreme Court of

India in case of Jami Venkata Suryaprabha and Another

(supra) observed in paragraph no.18 as under:

"18. Order XVIII Rule 1 indeed provides for plaintiff's right to begin the evidence but not the court's obligation to ask the plaintiffs to begin first. There is no impediment for the court to call upon either party to lead evidence first, depending upon the facts and circumstances of the case and the nature of the issues framed. Neither party can insist that the other one should be asked to lead it first. It all depends upon what the Court deems proper in the circumstances. Where it finds that defendant's plea strikes of the root of the case, there would be no hitch in asking him/her to prove such plea first which can lead to disposal of the case. There can be no watertight compartmentalisation in matters of justice and all rules of procedure are designed and directed to achieve and secure ends of justice."

(8) wp-871-2025.odt

11. In light of aforesaid observations of Supreme Court of India,

none of the party can insist upon other party to address argument

first. Even wording of sub-clauses (2) and (3) of Rule 2 of Order

XVIII of the Code of Civil Procedure uses the term 'may'.

Therefore, it is difficult to hold that petitioner could have insisted

defendants to argue first and secure such directions from Trial

Court. However, in facts of each case Court would have discretion

to pass orders in tune of law discussed in foregoing paragraphs.

12. Perusal of reasons in impugned order do not depict that Trial

Court applied mind to the factual matrix in tune with legal position

that subsists. In that view of the matter, this Court deems it fit to

relegate matter to Trial Court by setting aside impugned order for

reconsideration of application in light of law holding the field and

pass appropriate orders in exercise of discretion in judicious

manner.