Madras High Court
Ponnusamy vs Mohamani on 28 July, 2021
C.R.P.(P.D).No.4041 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.07.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(PD) No. 4041 of 2018
and
CMP No.22343 of 2018
1. Ponnusamy
2. Thangaraj
3. Gowri .... Petitioners
Vs
1. Mohamani
2. Veerammal .... Respondents
Prayer :- Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order dated
24.10.2018 made in I.A.No.396 of 2018 in O.S.No.452 of 2013 on the
file of the II Additional Subordinate Court, Erode.
For Petitioners : Mr. K.Govi Ganesan
For R1 : Mr.V.S.Kesavan
For R2 : No appearance
ORDER
This Civil Revision Petition is filed against the fair and decreetal
order dated 24.10.2018 made in I.A.No.396 of 2018 in O.S.No.452 of
https://www.mhc.tn.gov.in/judis/
C.R.P.(P.D).No.4041 of 2018
2013 on the file of the II Additional Subordinate Court, Erode, thereby
allowing the petition to commence the trial by the defendants.
2. The petitioners are the defendants and the first respondent
is the plaintiff. The first respondent filed suit in O.S.No.452 of 2013 for
partition. While pending the suit, the first respondent filed a petition in
I.A.No.396 of 2018 for direction directing the petitioners to begin the
trial for the reason that the first respondent set up a Will dated
29.10.1993 alleged to have been executed by his mother with regard to
the 'B' schedule property in favour of the first and second petitioner and
as such, they are bound to prove the alleged Will in the manner known to
law. In respect of 'A' schedule property, the petitioners 1 and 2 pleaded
oral relinquishment in their written statement. Further they also pleaded
that as if the first respondent herein received a sum of Rs.2,00,000/- from
the first petitioner herein. Therefore, sought direction to the petitioners
1 and 2 to begin the trial.
3. In this regard, it is relevant to rely upon the Judgment
rendered by the Hon'ble Division Bench of this Court reported in 2010
(6) CTC 225 in the case of Baja Auto Limited V. TVS Motor Company
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C.R.P.(P.D).No.4041 of 2018
Limited, in which, this Court categorically held that the defendant
cannot compel to begin the trial if they are not willing to begin the trial.
“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 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
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C.R.P.(P.D).No.4041 of 2018
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 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 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
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C.R.P.(P.D).No.4041 of 2018
cases, the burden is on the opposite party to lead evidence
that the negotiable instrument was made without
consideration”.
4. In view of the above, the order dated 24.10.2018 made in
I.A.No.396 of 2018 in O.S.No.452 of 2013 on the file of the II Additional
Subordinate Court, Erode, is hereby set aside. The suit is of the year
2013. The Trial Court is directed to dispose of the suit within a period
of six months from the date of receipt of a copy of this order.
5. With the above directions, this Civil Revision Petition
stands allowed. Consequently, connected Miscellaneous Petition is
closed. No costs.
28.07.2021
Lpp
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
To
1. The II Additional Subordinate Judge,
Erode.
2. The Section Officer,
V.R.Section, High Court, Erode.
https://www.mhc.tn.gov.in/judis/
C.R.P.(P.D).No.4041 of 2018
G.K.ILANTHIRAIYAN.J,
Lpp
C.R.P.(PD) No. 4041 of 2018
and
CMP No.22343 of 2018
28.07.2021
https://www.mhc.tn.gov.in/judis/
