Desh Bandhu vs Harish Bindal
2000 Latest Caselaw 735 Del

ORDER

Khan, J.

1. Petitioner is the defendant in Suit No. 208/99 filed by respondent for possession of agricultural land measuring 3 Bighas or so covered by Khasra No. 65/1 in illaqa Mundka. He filed written statement to the suit taking the stand that respondent plaintiff had no cause of action as he had perfected the title on the land by adverse possession. He also questioned the jurisdiction of the court to try the suit.

2. Trial court framed five issues in the suit. The first issue was framed on petitioner's plea and its onus to prove was put on him. The issue read thus:-

"Whether title of defendant had perfected over the land before its purchase by plaintiff."

OPD

3. No preliminary issue on jurisdictional plea or otherwise was framed in the suit and Trial court called upon petitioner to lead evidence.

4. Petitioner feels aggrieved of this and entertains a two fold grievance. According to him Trial court was bound to frame the preliminary issue on jurisdictional plea under Order 14, Rule 3 Code of Civil Procedure and that it could not have asked him to lead evidence first in terms of Order 18 Rule 1 of the Code. It is submitted by his counsel that plaintiff had a right to begin the evidence first under order 18 Rule 1 of the Code and by reversing the order, court had committed an irregularity. A party's right to begin was a valuable right which could not be taken away save otherwise in circumstances provided in Order 18, Rule 1. He placed reliance on AIR 1954 Vindhya Pradesh 53 which says that provisions of Order 18 Rule 1, are mandatory.

5. It must be pointed out at the very outset that petitioner's case proceeds on misinterpretation of relevant provisions of Order 14 and Order 18 PC. His pleas are not supported by any of the provisions of two orders. Firstly Order 14 nowhere makes it obligatory for the Court to raise and decide the preliminary issue where a jurisdictional plea is raised by the defendant. Its rule 2(2) only provides that where court is of the opinion that the case or any part of it may be disposed of on an issue of law only, it may try the issue first, if it relates to the jurisdiction of the court or the bar created by law to the suit. The relevant provision reads thous:-

"2(2). Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."

6. A perusal of the provision shows that it leaves it open for the court to raise a preliminary issue on an issue of law related to its jurisdiction or bar to the suit where it thinks that it may dispose of the case or part of it by so doing. It is not that the provision makes it incumbent upon the court to frame a preliminary issue and decide it first in all events and circumstances whenever a question of its jurisdiction is raised.

7. Petitioner's case is no better on the other issue and suffers from a fallacy on the face of it. Order 18 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 an be no water tight compartmentalisation in matters of justice and all rules of procedure are designed and directed to achieve and secure ends of justice.

8. In the present case it is not the plaintiff who complains of his infringement of his right to begin the evidence under Order 18 of the Code. Strangely it is the defendant petitioner invoking plaintiff's right. The relevant order nowhere confers any right on him to lead the evidence last. It is also not understandable what prejudice was caused to him by the impugned order. If he claims that plaintiff had no cause of action because he had perfected the title on the suit land upon which first issue is framed by the court with onus on him why should he not prove it first to get rid of the suit. He seems to have generated an avoidable controversy over nothing to prolong the litigation.

9. This revision petition accordingly fails and is dismissed.