Smt. Anita Bhargava vs Punna Ram Jatav
2022 Latest Caselaw 6694 MP

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         HIGH COURT OF MADHYA PRADESH
                                                   M.P. 1750/2022

      (Smt. Anita Bhargava vs. Punna Ram Jatav and Ors.)

Gwalior dated 05/05/2022

      Shri Akshat Kumar Jain, Advocate for the petitioner.

      The present petition is filed under Article 227 of

Constitution of India assailing the order dated 31/03/2022

passed in RCSA No. 02/2021 by 2nd Civil Judge, Senior

Division, Kolaras, District Shivpuri (M.P.), by which,

application filed by the petitioner under Order XVIII Rule

1 r/w section 151 of Civil Procedure Code (for brevity,

CPC) was dismissed.

      The facts in brief in this case are that the

petitioner/plaintiff   filed   a   civil   suit    for   specific

performance of contract and permanent injunction. In the

suit, it was pleaded that one agreement to sale was

executed by the respondents/defendants No. 1 to 3 on

15/06/2017 and Rs. 5 Lakhs were received by the

respondents/defendants while executing agreement to sale

before the Sub-Registrar, Shivpuri. According to

agreement to sale, the registered sale deed was to be

executed within 2 years i.e. 15/06/2019 after receiving

HIGH COURT OF MADHYA PRADESH M.P. 1750/2022

remaining amount of Rs. One lakh. The petitioner/plaintiff

was willing to execute the registered sale deed. However,

the respondents/defendants No. 1 to 3 refused to execute

the sale deed. Thereafter, the present civil suit was filed.

The written statement was filed by the

respondents/defendants No. 1 to 3 denying the facts that

they executed any agreement to sale. In their statements,

respondents/defendants pleaded that they are the owner of

agricultural land admeasuring area 0.060 hectare.

However, they do not intend to sale their agricultural land

at Rs. 6 Lakhs. They have received Rs. 5 Lakhs as a loan

for repayment with interest @ 12% per annum. It was

further pleaded that the defendants want to repay the

principal amount along with interest and, therefore,

prayed for rejection of the civil suit.

The learned trial Court framed the issues in respect

to the execution of the alleged agreement to sale.

Thereafter, the petitioner /plaintiff moved an application

under Order XVIII Rule 1 of CPC praying that the

defendants have admitted the execution of agreement to

HIGH COURT OF MADHYA PRADESH M.P. 1750/2022

sale and, therefore, as per the provision of Order XVIII

Rule 1 of CPC, the defendants should be directed to start

their evidence. The leaned trial Court rejected the

application by impugned order.

Learned counsel for the petitioner argued that the

impugned order is perverse and contrary to the principle

of law. He has further argued that since the defendants

have admitted execution of agreement to sale, therefore,

they should be directed to lead the evidence first. In

support of his contentions, he has placed reliance upon the

judgments delivered by co-ordinate Bench of this Court in

Civil Revision No. 245 of 1984, decided on 06/03/1985

(Radha Traders, Morena and Ors. vs. Chhakkoolal

Vaishya and Ors.) & Civil Revision No. 2860/99 decided

on 19/06/2000 (Jagran and Ors. vs. Basanti Bai and Ors.).

He has also placed reliance upon the judgment delivered

by the Delhi High Court in CM (M) 255/2020 dated

26/02/2020 (Achala Mohan vs. Jayashree Singh) .

At this juncture, the provision of Order XVIII Rule

1 of CPC are relevant for consideration, which reads as

HIGH COURT OF MADHYA PRADESH M.P. 1750/2022

below :-

"ORDER XVIII :- Hearing of the suit and examination of witnesses.

1. Right to begin.--The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contents 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."

The provision of Order XVIII Rule 1 of CPC makes

it clear that the word "facts" means all the material facts.

Thus, where the defendant admits only some of the facts

alleged by the plaintiff, there the plaintiff should begin.

In the present case, it is apparent that the defendants

have not admitted the material facts pleaded in the plaint.

The defendants have admitted only some of the facts

alleged by the plaintiff, therefore, arguments of the

petitioner is not acceptable that since the defendants have

admitted the facts in respect to the execution of the

agreement to sale, the Court should direct the defendants

to lead the evidence first.

The law is also well settled that a person who sets

HIGH COURT OF MADHYA PRADESH M.P. 1750/2022

the law in motion and seeks a relief before the Court, must

necessarily be in a position to prove his case and get the

relief moulded by law. The right to begin is to be

determined by the rules of evidence. As a general rule, the

party on whom the burden of prove rest should begin. In

no case, the plaintiff can be allowed to take any undue

advantage over the defendant whatever may be the

position or stand the defendant takes for the very reason

that the defendant is expected to answer the claim made

by the plaintiff in the suit. In this case, the burden to

prove the execution of agreement to sale is on the

plaintiff.

The facts and circumstances of cases cited by the

petitioner are different from this case, therefore, they do not

support the case of the petitioner.

In view of above and in the considered opinion of this

Court, the trial Court upon due appreciation of facts has

applied correct principle of law by dismissing the application,

as such, neither there is any illegality nor jurisdictional error

warranting interference of this Court under Article 227 of

HIGH COURT OF MADHYA PRADESH M.P. 1750/2022

Constitution of India.

Consequently, the instant petition sans merit and is

hereby dismissed.

(Sunita Yadav) Judge Durgekar*

SANJAY Digitally signed by SANJAY NAMDEORAO DURGEKAR DN: c=IN, o=HIGH COURT OF MADHYA

NAMDEOR PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=afa4701a2661e1fb7720c022ffc277608

AO ce55ba67f3594a641181b9ae8448e58, pseudonym=DA26B82C5BC4CAF69072CA5A13 CA996C4169AB06, serialNumber=1190D1488DBA862FB108ED662 62DC2DC2CB9D310D73128B3A6E7B046FCF28

DURGEKAR 227, cn=SANJAY NAMDEORAO DURGEKAR Date: 2022.05.07 10:15:22 -07'00'