Madras High Court
Periyasamy vs Soliammal on 6 July, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 6.7.2021.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
C.R.P.(PD) No.641 of 2017
and
C.M.P.No.3250 of 2017
Periyasamy Petitioner
vs.
Soliammal Respondent
Civil Revision Petition filed under Article 227 of the Constitution
of India against the Fair and Decreetal order dated 3.12.2016 passed
in I.A.No.291 of 2016 in O.S.No.251 of 2013 on the file of the I
Additional District Judge, Erode.
For Petitioner : Mr.V.S.Kesavan
For Respondent : No appearance.
ORDER
The revision has been filed against the order passed in
I.A.No.291 of 2016 in O.S.No.251 of 2013 on the file of the I
Additional District Judge, Erode.
2. The revision petitioner is the defendant. The plaintiff and
defendant are siblings.
3. For the purpose of convenience, the parties are referred as
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they are arrayed in the Original Suit.
4. Brief facts of the case leading to filing of the civil revision
petition is as under:-
(i) The plaintiff filed the suit for partition in respect of the suit
properties, which, according to the plaintiff are both ancestral and self
acquired properties of her father, who died intestate.
(ii) The defendant had filed a written statement denying the
averments of the plaintiff and contended that his father Nallappa
Gounder, during his life time, on 27.1.2000, executed a Will in his
favour while he was in a sound and disposing state of mind.
(iii) The plaintiff filed a reply statement denying the execution of
the Will in favour of the defendant.
(iv) The Trial Court framed issues and when the matter was
taken up for trial, the plaintiff had filed I.A.No.291 of 2016 under
Order XVIII Rule 1 and Section 151 CPC directing the defendant to
begin with the case first.
(v) In the petition, it was contended by the plaintiff that the
defendant had taken a stand in para 10(2) that their father had
executed a Will on 27.1.2000 in favour of the defendant bequeathing
the entire A schedule properties and items 1 to 3 of B schedule
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properties and as far as items 4 and 5 of B schedule properties, he had
purchased out of his own and that he had also pleaded ouster and
adverse possession against the plaintiff, however, according to the
plaintiff, the Will dated 27.1.2000 is a forged and not a true and
genuine one and thereby the burden of proof heavily lies on the
defendant to prove the existence of the Will and with regard to ouster
and adverse possession by adducing appropriate evidence both oral
and documentary.
(vi) The defendant filed a counter contending that as per Order
XVIII Rule 1, the right to begin was given exclusively to the defendant
which can be utilised by the defendant only on his own volition and the
plaintiff cannot seek to enforce it to direct the defendant to begin the
case first.
(vii) The Trial Court after hearing both the parties, had allowed
the petition and held that the onus of proof lies heavily on the
defendant that his father Nallappa Gounder had executed a Will in his
favour and thereby directed the defendant to let in evidence first,
against which, the present revision has been filed.
5. The learned counsel for the revision petitioner/defendant is
present. Despite service of notice and printing of name of the
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respondent, he neither appeared in person nor is represented by any
counsel. This court directed the learned counsel for the petitioner to
inform the learned counsel who appeared for the respondent herein
before the court below and the learned counsel for the petitioner, after
complying the said direction, reported before this court and produced
necessary proof in this regard. Despite the matter being posted today
and despite affidavit of service being filed, there is no representation
for the respondent.
6. The learned counsel for the petitioner would submit that the
provision under Order XVIII Rule 1 CPC confers a right only on the
defendant in contingency referred therein, to begin which is,
apparently, an enabling provision entitling of right to begin and it does
not confer any power on the court or the plaintiff to compel the
defendant to enter into the witness box first to adduce evidence in
support of his claim before the plaintiff enters into the witness box. He
would also submit that there is no specific provision under Order XVIII
that the court can presume power to direct the defendant to let in
evidence first and the right to begin conferred under Order XVIII Rule
1 is an exclusive right given only to the defendant and not to the
plaintiff and only the defendant can exercise his right to let in evidence
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and the court has to look into the pleadings and written statement in a
whole and only in contingencies wherein the exercise of provision can
be granted to the defendant, however, such a right cannot be
exercised by the plaintiff or by the court. The Trial Court, without any
powers conferred on it under Order XVIIII Rule 1, had stretched the
provisions, which is against the law.
7. The learned counsel for the petitioner further that Order XVIII
Rule 1 CPC is concerned not only with the production of evidence but,
it is a composite provision dealing with the right to begin the case in
general and this includes the production of evidence as well as
addressing the court by oral arguments. He would further submit that
though Order XVIII Rule 1 CPC provides in general about the right to
begin, Rule 2 of Order XVIII deals with opening the case and
production of evidence. He, therefore, submitted that a combined
reading of the provisions would show that the person, who has got a
right to begin must lead the evidence first and as per the statutory
scheme, the plaintiff is given right to begin the case, however, this
right would not give a further right to compel the defendant to produce
his evidence first and neither the plaintiff nor the court can compel the
defendant to exercise such a right.
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8. The learned counsel for the petitioner also submitted that the
question of the defendant beginning a case would arise only in case
wherein the defendant admits the facts alleged in the plaint and
contends and claims that either on the point of law or on additional
facts, the plaintiff is not entitled to any part of the relief which he
seeks. The learned counsel would reiterate that such a right is a
prerogative of the defendant alone and it is essentially a legal
obligation to prove the case and in this case, though there is onus on
the defendant to prove his case, but, the right to begin is an exclusive
right given under Order XVIII Rule 1 which the defendant can exercise
or not exercise. He, therefore, submitted that the Trial Court
erroneously allowed the petition and had directed the revision
petitioner/defendant to let in evidence which is against law and
thereby seeks that the revision may be allowed and the order passed
by the Trial Court be set aside.
9. In support of his contentions, the learned counsel for the
petitioner would rely upon the following decisions:-
i) Bajaj Auto Limited v. TVS Motor Company Limited (2010 (6)
CTC 225)
ii) Gouri Food Products v. Priya Trading Co. (2003(1) Civil
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Court Cases 576 (Bom.))
iii) Bhagirath Shankar Somani & Others vs. Rameshchandra
Daulal Soni and another (2007(4) Civil Court Cases 348 (Bom))
iv) P.Lingasamy v. B.Premavathy (2017(1) CTC 305)
10. Heard the learned counsel for the petitioner and perused
the order passed by the court below.
11. The relevant portions of the decisions relied on by the
learned counsel for the petitioner are extracted hereunder:-
(i) In Bajaj Auto Limited v. TVS Motor Company Limited
(2010 (6) CTC 225), a Division Bench has held as under:-
" 24. The issues raised in these appeals revolve
around the interpretation of Order 18 Rule 1 and 2
CPC.
25. Order 18 (1) of CPC deals with hearing of the
suit and examination of witnesses. The provision reads
thus :-
"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
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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."
26. The provisions of Order 18 CPC indicates the
normal method of production of evidence and the
arguments by either parties.
27. The term "right to begin" is not merely a
right. It is rather a duty or legal obligation. It is so
because the plaintiff has to win or lose the case on the
basis of his own case and not on the weakness of the
defendant's case.
28. Order 18 Rule 1 CPC is concerned not only
with the production of evidence. It is a composite
provision dealing with the right to begin a case in
general. This includes the production of evidence as
well as addressing the Court by oral arguments.
Though Order 18 rule 1 CPC provides in general about
the right to begin, Rule 2 of Order 18 deals with
opening the case and production of evidence. A
combined reading of Rules 1 and 2 of Order 18 CPC
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would show that the person who got a right to begin
must lead evidence first. As per the statutory scheme,
the plaintiff is given the right to begin the case. This
right would not give the plaintiff a further right to
compel the defendant to produce his evidence at the
first instance. The question of defendant beginning the
case would arise only in cases wherein the defendant
admits the facts alleged in the plaint and contends that
either on point of law or on some additional facts
alleged by him, the plaintiff is not entitled to any part
of the relief which he seeks. It is only in such
circumstances, the defendant gets the right to begin.
Therefore, the "right", as defined in Rule 1 of Order 18
would not really be a "right" and is essentially a legal
obligation to prove the case.
29. There are exceptions to this Rule like the
case relating to promissory notes. In a suit on
promissory notes, if the defendant admits execution,
the burden would shift to him to prove the discharge.
Section 18 of the Negotiable Instruments Act provides
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that until the contrary is proved, the Court shall
presume that every negotiable instrument or debt was
made or drawn as shown in the document. In such
cases, the burden is on the opposite party to lead
evidence that the negotiable instrument was made
without consideration.
... ... ...
52. The general principle is that the plaintiff
should win or lose his case on the basis of the case set
up by him. The defendant got a right to insist that he
should not be compelled to disclose his evidence first
as otherwise the plaintiff would tune his case
accordingly. Therefore, the defendant was right in
insisting that the plaintiff should prove his case first
before calling upon him to adduce evidence. When
there is a deviation from the normal rule, naturally, it
would result in injustice. Such injustice would give a
cause of action to file an appeal."
(ii) In Gouri Food Products v. Priya Trading Co. (2003(1)
Civil Court Cases 576 (Bom.)), the Bombay High Court has held as
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under:-
"10. In the instant case, the applicant moved an
application under Order 18 of the Civil Procedure Code
seeking to exercise power under Order 18, Rule 1 and
direct the defendant to begin the evidence, since the
defendant in his Written Statement has admitted
execution of agreement and the payment of two
instalments made to the applicant (plaintiff) pursuant
to the said agreement. It is further contended by the
plaintiff that since the defendant has stated in his
Written Statement that he has executed agreement
under undue influence and coercion, the burden of
proving this fact lies on the defendant, since the other
aspects are admitted by him and, therefore, it is
contended by the plaintiff that the trial Court ought to
have allowed the application under Order 18, Rule 1 of
the Civil Procedure Code.
11. On the backdrop of the above referred legal
position, vis-a-vis Order 18, Rule 1 of the Civil
Procedure Code, it is evident that it only confers a
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right, in the contingencies referred to hereinabove, to
begin, which is apparently an enabling provision
entitling the defendant of right to begin, and does not
confer any power on the court to direct the defendant
to enter witness box and adduce evidence first in
support of his claim before the plaintiff enters witness
box. The contention advanced by the learned counsel
for the applicant in this regard cannot be accepted.
Similarly, as far as Order 18, Rule 2 of the Civil
Procedure Code is concerned, the same is not
attracted and does not help the cause of the applicant.
The contention canvassed by the learned counsel for
the applicant in this regard also needs to be rejected.
The view taken by him is fortified by the Judgment of
this Court in Haran Bidi Suppliers and Anr. v. V. M. and
Company, Bhandara, reported in 2001 (4) Mh.L.J. 112.
12. So far as the Judgment of the Gujarat High
Court is concerned, the Hon'ble Judge has considered
the aspect whether the court was entitled to record
evidence of the parties before framing issues under
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Order 14, Rule 11, read with Order 10, Rule 2 of the
Code of Civil Procedure. Though there are some
passing observations of a general nature made in the
Judgment in regard to Order 18 of the Code of Civil
Procedure, however, the court did not specifically face
with the situation as regards the power of the court,
vis-a-vis Order 18 of the Civil Procedure Code. In the
instant case, the issue involved, adjudicated upon and
considered pertains to the purport of Order 18, Rules 1
and 2 of the Civil Procedure Code, interpretation of the
same and consequence thereof, vis-a-vis power of the
Court, which emerges from Order 18, and after due
consideration in regard on these aspects, it can safely
be concluded that Order 18, Rule 1 of the Civil
Procedure Code confers right on the defendant in view
of the contingencies mentioned therein, and entitles
him to begin the evidence. However, the analogy
cannot be stretched further in order to hold that it also
confers power on the court to issue necessary
directions in this regard. It, no doubt, sounds little
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harsh, however, in absence of a specific provision
under Order 18 and its Sub-rules, it will not be proper
to presume the existence of such power in the court.
Such interpretation of Order 18 of the Code of Civil
Procedure may not be valid. While dealing with the
issue in question, this court has confined the
debate/adjudication only in respect of purport of Order
18 of the Civil Procedure Code, and has not considered
the inherent power of the court under Section 151 of
the Civil Procedure Code."
(iii) In Bhagirath Shankar Somani & Others vs.
Rameshchandra Daulal Soni and another (2007(4) Civil Court
Cases 348 (Bom)), it has been held as under:-
"13. The first issue to be decided is whether by placing
reliance on Rule 1 of Order XVIII of the said Code, the
Court can give direction to the Defendant to enter the
witness box before the Plaintiff leads his evidence. The
said issue is no longer res integra. The learned single
Judge of this Court in the case of Haran Bidi Suppliers
and Anr. v. V.M and Company, Bhandara 2001(4)
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Maharashtra Law Journal Page 113 had occasion to deal
with the said issue. This Court was dealing with a
revision Application where the challenge was to an order
by which the trial Court had directed the Defendants to
enter the witness box before the Plaintiff leads the
evidence. This Court considered the provisions of Order
XVIII of the said Code and in particular Rule 1 thereof.
After considering Rule 1, the learned single Judge held
thus:
On the plain language of the said provisions, it
would appear that it is only an enabling
provision entitling the defendant of right to
begin. In my view, this provision cannot be
interpreted to mean that the Court would be
competent to direct the defendant to enter the
witness-box before the plaintiff and lead
evidence in support of its case. In the
circumstances, the impugned order passed by
the trial Court cannot be sustained in law.
There is one more decision of another
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learned single Judge on this aspect. The said
decision is rendered in the case of Gouri Food
Products, Nagpur v. Priya Trading Company,
Nagpur, 2003(1) Civil Court Cases 576
(Bombay). The same issue arose before this
Court regarding power of the trial Court to give
direction to the Defendant to lead evidence
before the Plaintiff leads his evidence.
This Court considered the provisions of Order
XVIII and in particular Rules 1 to 3 thereof. This Court
also considered the decision of the Gujarat High Court
in the case of M/s Keshavlal Durlabhasinbhai's Firm
(supra) on which reliance has been placed by the
learned Counsel for the first Respondent. In paragraph
No.7, the learned single Judge held thus:
The plain reading of Rule 1 would show that
the plaintiff, undoubtedly, has a right to adduce
evidence first in the suit. However, in view of
certain contingencies mentioned in Rule 1, the
defendant gets right to begin, and is entitled to
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adduce evidence first in the suit. This is,
undoubtedly, an enabling provision entitling the
defendant of right to begin. However, nothing in
this provision confers any power on the Court
under this Rule to direct defendant to adduce
evidence first in the suit if the defendant himself
has not claimed such right in view of the
contingencies mentioned in Rule 1.
In paragraph No.11 of the said decision, this
Court referred to the decision of this Court in the case
of Haran Bidi Suppliers (supra). The learned single
Judge held in paragraph No.11 as under:
11. On the backdrop of the above referred
legal position, vis-a-vis Order XVIII, Rule 1 of the
Civil Procedure Code, it is evidence that it only
confers a right, in the contingencies referred to
hereinabove, to begin, which is apparently an
enabling provision entitling the defendant of right
to begin, and does not confer any power on the
court to direct the defendant to enter witness box
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and adduce evidence first in support of his claim
before the plaintiff enters witness box. The
contention advanced by the learned Counsel for
the applicant in this regard cannot be accepted.
In paragraph No.12 this Court held thus:
It, no doubt, sounds little harsh, however,
in absence of a specific provision under Order
XVIII and its Sub-rules, it will not be proper to
presume the existence of such power in the
court. Such interpretation of Order XVIII of the
Code of Civil Procedure may not be valid.
14. Reliance was placed by the learned Counsel
appearing for the first Respondent on the decision of
this Court in the case of Kumudini Damodar Magar
(supra). It must be borne in mind that the issue which
is involved in these Petitions, viz, "Whether the Court
has power to issue directions under Rule 1 of Order
XVIII of the said Code to the Defendant to lead his
evidence before the Plaintiff leads evidence?" did not
arise in the said case. This Court was concerned with
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the issue whether a Defendant can be permitted to lead
evidence prior to the recording of evidence of the
Plaintiff. The right which was claimed by the Defendant
in the said case was on the basis of Rule 3A of Order
XVIII. In paragraph No.13 this Court held thus:
Thus, if the plaintiff wants to examine
defendant as a witness on his behalf, he cannot
be precluded from examining him on the ground
that the said defendant has neither appeared in
the suit nor upon appearance filed written
statement nor on the ground that the prayer of
the defendant for filing written statement had
been rejected. In terms of the provision of Rule 1
of Order XVIII, the right or privilege to begin first
and, thus, to examine the witness first depends
on the pleadings of the parties. While ordinarily it
is the plaintiff who begins first, in an appropriate
case the defendant may claim such privilege or
may be directed by the Court to do so bearing in
mind the facts and circumstances of the case.
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15. Apart from the fact that the issue which is
involved in this Petition regarding the power of the
Court to issue direction did not arise for consideration
before the learned single Judge, the aforesaid two
decisions of the learned single Judges of this Court in
the case of Haran Bidi Suppliers and Gouri Food
Products (supra) which were binding precedents were
not brought to the notice of the learned single Judge. As
the issue involved in this Petition never arose for
consideration before the learned single Judge in the
case of Kumudini Damodar Magar (supra), the
observations made in paragraph No.13 which are
referred to above cannot be read as a binding ratio or a
binding precedent.
16. Thus, the consistent view taken by this Court
is that a direction against the Defendant to lead
evidence before the Plaintiff leads his evidence cannot
be issued under sub rule 1 of Order XVIII of the said
Code. The scheme of Rule 1 appears to be that as a
normal Rule it is the privilege of the Plaintiff to lead his
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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 trial Court stating that as the case is covered
by exception in Rule 1 of 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 Plaintiff 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. If the Defendant decides 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
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of such a right, the Court will have to decide the
question whether the Defendant has acquired a right to
begin.
17. In view of the settled position of law as
reflected from the aforesaid decisions, the learned trial
Judge could not have granted prayer Clause (b) of the
Notices of Motion. Therefore, the impugned order in so
far as it grants prayer Clause (b) will have to be
quashed and set aside."
(iv) In P.Lingasamy v. B.Premavathy (2017(1) CTC 305),
this court has held as under:-
"2. The learned Trial Judge allowed the application on
the ground that the petitioner in his written statement
pleaded that there is a Will executed in his favour and as
such, he is entitled to the property. The Trial Court was
of the view that on account of the Will, the petitioner has
to commence the evidence at the first instance.
3. The written statement filed by the petitioner in
his capacity as first defendant in O.S.No.367 of 2008
indicates that the suit was resisted on multiple grounds.
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The Will dated 05.09.1989 was also taken as a ground to
demonstrate that the first respondent is not having any
share in the property.
4. The learned Trial Judge was of the view that
since the petitioner placed reliance on the Will, it is for
him to prove his case.
5. While considering an application under Order 18
Rule 1 of CPC, the Court has to consider the plaint and
the written statement in its entirety. It is not as if the
petitioner placed reliance on the Will alone to non-suit
the first respondent. Since several defences were taken
by the petitioner in his written statement in O.S.No.367
of 2008, the Trial Court was not correct in directing him
to lead evidence at the first instance. I am therefore of
the view that the impugned order is liable to be set
aside."
12. On consideration of the facts and circumstances of the
present case in the light of the principles laid down in the above
decisions, it is seen that in this case, the plaintiff had filed the suit for
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partition. The revision petitioner/defendant filed written statement
claiming that his father left a Will in his favour and apart from that the
the revision petitioner/defendant also stated that the plaintiff is well
aware of the Will executed by their father Nallappa Gounder and that
after the demise of his father, the revision petitioner/defendant made
huge improvements in the suit properties, levelled the lands, made
improvements, constructed a terraced house in the B schedule
property, laid pipelines for more than 3000 feet, got new electricity
connection by spending huge amounts, got the revenue records
mutated and planted 500 coconut trees and the plaintiff is ousted
from the suit property and the defendant has also become absolute
owner by adverse possession and he had also purchased items 4 and 5
of the suit B schedule properties in his name and spent huge amounts
towards improvements.
13. Thus, while considering the Application under Order 18 Rule
1 CPC, the court has to consider the plaint and written statement in its
entirety and it is not a case where the revision petitioner/defendant
placed reliance on the Will alone. Since several other defences are
taken in the written statement, the Trial Court was not correct in
directing him to lead evidence at the first instance. This court is,
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therefore, of the view that the impugned order is liable to be set aside.
Accordingly, the civil revision petition is allowed. The order passed by
the Trial Court is set aside. No costs. The connected Miscellaneous
Petition is closed.
6.7.2021.
Index: Yes/No.
Internet: Yes/No.
ssk.
To
I Additional District Judge,
Erode.
https://www.mhc.tn.gov.in/judis/
A.D.JAGADISH CHANDIRA, J.
Ssk.
C.R.P.(PD) No.641 of 2017
and
C.M.P.No.3250 of 2017
6.7.2021.
https://www.mhc.tn.gov.in/judis/
