Madras High Court
V.Nirmala vs P.Kanmani on 26 April, 2023
C.R.P.(MD)No.2186 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.04.2023
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P.(MD)No.2186 of 2022
and
C.M.P.(MD)No.10180 of 2022
V.Nirmala .. Petitioner
Versus
1.P.Kanmani
2.V.Vairamani
3.D.Thangamani
4.B.Malini
5.R.Thilagavathi
6.R.Lakshmikanthan
7.R.Pooja Shri .. Respondents
Prayer :- Petition filed under Article 227 of the Constitution of India, against the fair
and decreetal order dated 10.08.2022 passed in I.A.No.1 of 2022 in O.S.No.471 of
2015, on the file of the Principal Sub Court, Karur.
For Petitioner : Mr.K.Hemakarthikeyan
For R1 to R4 : No Appearance
For R5 to R7 : Mr.R.Mathiyalagan
ORDER
The petitioner is aggrieved by the impugned fair and decreetal order dated
10.08.2022 passed in I.A.No.1 of 2022 in O.S.No.471 of 2015, on the file of the
Principal Sub Court, Karur.
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C.R.P.(MD)No.2186 of 2022
2.The learned counsel for the petitioner submits that the petitioner is the
plaintiff in O.S.No.471 of 2015 before the Principal Sub Court, Karur. The said suit
has been filed by the petitioner against her sisters [respondents 1 to 4 herein] and her
sister-in-law and her two children, who have been arrayed as respondents 5 to 7
herein/defendants 5 to 7.
3.In the above suit, respondents 5 to 7 have filed their written statement and
additional written statement together with counter claim. In the written statement, it
has been stated that the petitioner's father and mother have executed two separate
unregistered Wills, dated 31.07.1996 and 23.07.1998 in favour of their deceased son
Rajamani, husband of the fifth respondent/fifth defendant and father of the
respondents 6 and 7/defendants 6 and 7.
4.It is the case of the petitioner that the first schedule of property belonged to
her father and the second schedule of property belonged to her mother, which was
admitted by the respondents 5 to 7/defendants 5 to 7. Further, the respondents 5 to
7/defendants 5 to 7 had claimed title through the aforesaid unregistered Wills and
therefore, the respondents/defendants have to begin examination of witnesses as first
as per Order XVIII Rule 1 of C.P.C., so that the petitioner can cross-examine them.
Hence, the petitioner filed I.A.No.1 of 2022 in O.S.No.471 of 2015 before the
Principal Sub Court, Karur.
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C.R.P.(MD)No.2186 of 2022
5.By the impugned fair and decreetal order dated 10.08.2022, the learned
Principal Sub Judge, Karur, has dismissed the application filed by the petitioner with
the following obervations:-
''7.kDjhuH jhf;fy; nra;Js;s chpikapay; tprhuiz
Kiwr;rl;lk; fl;lis 18 tpjp 1y; gpd;tUkhW fz;Ls;sJ.
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 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.
vd;W njhptpj;Js;sJ. Nkw;gb rl;lg;gphptpd; mwpe;jikfspypUe;J
tof;F jhf;fy; nra;Js;s thjpNa nghJthf tprhuizia
njhlq;fNtz;Lk;. khwhf thjp tof;Fiuapy; $wpAs;s rq;fjpia
gpujpthjp xg;Gf;nfhz;L rl;lj;jpd; mbg;gilapy; thjp NfhhpAs;s
ghpfhuk; mtUf;F fpilf;fj;jf;fjy;y vd;W njhptpj;jhy; gpujpthjp
tof;if njhlq;fyhk; vd;W cs;sJ. ek;Kd; cs;s ,e;j tof;fpNyh
thjpapd; tof;Fiuapy; cs;s rq;fjpfis 5 Kjy; 7 gpujpthjpfs;
Kw;wpYk; kWj;J vjpHtof;Fiu jhf;fy; nra;jpUf;fpwhH. NkYk; capy;
rhrzq;fspd; mbg;gilapy; jhthr; nrhj;jpy; chpik ghuhl;LfpwhH.
Nkw;gb fhuzj;jpw;fhf Nkw;gb rl;lg;gphptpd;gb tof;if njhlq;Fk;gb
5 Kjy; 7 gpujpthjpfSf;F cj;jputplKbahJ. NkYk; 5 Kjy; 7
gpujpthjpfs; tof;if Kjypy; njhlq;Ftjw;F jq;fSf;F mDkjp
Ntz;Lnkd;W ,k;kDit jhf;fy; nra;jpUf;ftpy;iy. khwhf ,e;j
tof;if ep&gpf;Fk; Rikia nfhz;Ls;s thjp mtuJ tof;if
ep&gpf;fhky; 5 Kjy; 7 gpujpthjpfs; tof;if ep&gpf;fNtz;Lk;
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C.R.P.(MD)No.2186 of 2022
vd;W ,k;kDit jhf;fy; nra;jpUg;gJ Nkw;gb rl;lg;gphptpd;gb
Kw;wpYk; epiyepw;fj;jf;fjhf ,y;iy vd;W Nkw;fhz; mwpe;jikfspd;
tpistpw;F ,e;ePjpkd;wk; KbT fhz;fpwJ. MfNt kDjhuH kDit
js;Sgb nra;tNj Nkw;fhz; xl;Lnkhj;j mwpe;jikfspd; tpistpw;F
rl;lgb cfe;jjhf ,Uf;Fnkd;W ,e;ePjpkd;wk; KbT fhz;fpwJ.''
6.In support of his contentions, the learned counsel for the petitioner has relied
on the following judgments of this Court:-
(i) V.Palanisamy vs. V.Shanmugam and others [2012 (3) CTC 6 : 2012 (1)
LW 467], wherein it has been held as follows:-
''10. It must be noted that the present case is a case of partition. In
normal circumstances there will be very little difference of opinion between
the partners. But, when a defendant seeks to purport a property in question
on the basis of a family arrangement which was specifically acted upon,
then it is for him to prove such a family arrangement before the Court so as
to exclude those properties from the common pool. The plaintiff cannot be
expected to prove the negative, as it was a matter not covered by any
documentary evidence and based upon an oral arrangement followed by
conduct of the parties.
11. Considering that it was a partition suit, the endeavor of the Court
will be to assign proper share to all the sharers. The Court below had not
committed any irregularity. It must also be noted at any time, the Court can
ask parties to let in evidence and the power of the Court in that context was
not taken away as held by the Supreme Court in Salem Advocate Bar Assn. v.
Union of India reported in (2005) 6 SCC 344. In paragraph 32 it was
observed as follows:
32.Order 18 Rule 2(4) which was inserted by Act 104
of 1976 has been omitted by Act 46 of 1999. Under the said
rule, the court could direct or permit any party, to examine
any party or any witness at any stage. The effect of deletion
is the restoration of the status quo ante. This means that
law that was prevalent prior to the 1976 amendment, would
govern. The principles as noticed hereinbefore in regard to
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deletion of Order 18 Rule 17(a) would apply to the deletion
C.R.P.(MD)No.2186 of 2022
of this provision as well. Even prior to the insertion of
Order 18 Rule 2(4), such a permission could be granted by
the court in its discretion. The provision was inserted in
1976 by way of caution. The omission of Order 18 Rule
2(4) by the 1999 amendment does not take away the court's
inherent power to call for any witness at any stage either
suo motu or on the prayer of a party invoking the inherent
powers of the court.''
(ii) Krishnakumar and others vs. V.Seethalakshmi and two others [C.R.P.
(PD)No.28 of 2013, decided on 07.01.2013], wherein it has been held as follows:-
''7. The case of the defendants is that, Narayana Asari did not die
intestate and he executed a Will in favour of his son Subramaniam, viz., the
father of the defendants. Therefore, as per the provisions of Order 18, Rule 1
of C.P.C., both the parties, viz., the plaintiffs and the defendants admitted the
fact that the properties belonged to Narayana Asari and this fact has to be
taken into consideration and the other denial, regarding the succession to
the property cannot be taken into consideration to decide whether the
defendants are admitting the case of the plaintiffs are not. If the arguments
of the learned counsel for the revision petitioners is to be accepted, for
attracting the provisions of Order 18, Rule 1, that the defendants ought to
have admitted the facts, alleged in the plaint, then, there is no need for any
trial and the Court can straightway pass a decree. What the order requires
is, whether the defendants admitted the basis of the claim of the plaintiffs.
In this case, the basis of the claim of the plaintiffs is that the property
belonged to Narayana Asari. That fact admitted by the defendants. If the
defendants claimed that the property did not belong to Narayana Asari or
Narayana Asari has no absolute estate over the property, in that case, it
cannot be stated that the defendants have admitted the case of the plaintiffs.
Therefore, having admitted the fact that the property belongs to Narayana
Asari, the first condition, as stated in Order 18, Rule 1 has been satisfied
and when the defendants pleaded right over the property, under the Will,
they will have to prove the Will. Therefore, the Court below has rightly
directed the defendants to lead evidence, in the first instance. In the
judgment rendered in [ Bajaj Auto Ltd., Vs. TVS Motor Company Ltd.,
referred to supra, it has been held by the Hon'ble Division Bench of this
Court in para No.34, which reads thus:-
"Burden of proof vis-a-vis onus of proof:-
Burden of proof generally lies on a party, who asserts
a particular fact. In other words, it would be on a party,
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C.R.P.(MD)No.2186 of 2022
whose suit would fail, if no evidence was let in. onus of
proof by a party would cease the moment opposite party
admits the transaction. Burden of proof on the pleadings of
a party, never shifts to the other party. The initial burden of
proving a particular fact is always on the party who asserts
it. When he produces evidence in support of his statement,
onus would shift on the opposite party to adduce rebutting
evidence to meet the case made out by the other party. In
civil cases, onus of proof is never fixed permanently, but it
would fluctuate very frequently. "
8. In this case too, the burden of proof lies on the party, who asserts a
particular fact. The particular fact, which is asserted is, whether the
property belonged to Narayana Asari absolutely. That fact has been
asserted by the plaintiffs and also admitted by the defendants. Therefore,
there is no burden of proof on the plaintiffs to prove that fact. Insofar as the
onus of proof is concerned, it is held in that judgment, referred to above, that
onus of proof by a party would cease, the moment, the opposite party admits
the transaction. In this case, the onus of proof is on the defendants to prove
the execution of the Will, that has been denied by the plaintiffs. Once
defendants are able to prove the Will to the satisfaction of the court, the suit
filed by the plaintiffs will be dismissed and there is no necessity to go into
the further aspects of the matter, by letting evidence by the plaintiffs.
Considering all these aspects, the Court below initially directed the
defendants to lead evidence first and that was properly appreciated, while
considering the Review Application. Further, I do not find any infirmity in
the order passed by the Court below in the Review Application and there is
no error apparent on the face of record to interfere with the same.''
7.The learned counsel for the respondents 5 to 7 submits that the impugned
order is well reasoned and requires no interference and therefore, he prayed for
dismissal of the Civil Revision Petition.
8.A reading of Order XVIII Rule 1 of C.P.C. indicates that the plaintiff has the
right to begin unless the defendant admits the facts alleged by the plaintiff and
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C.R.P.(MD)No.2186 of 2022
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.
9.In my view, there is no admission in the written statement filed by the
respondents 5 to 7/defendants 5 to 7 for invocation of Order XVIII Rule 1 of C.P.C.
The petitioner/plaintiff is the author of the dispute and therefore, she has right to
begin unless the specific requirements of Order XVIII Rule 1 of C.P.C. are satisfied.
10.In this case, the requirements are not satisfied. Therefore, the application
filed by the petitioner has been rightly rejected by the learned Principal Sub Judge,
Karur. In my view, the order passed by the learned Principal Sub Judge, Karur, does
not call for any interference. Hence, the present Civil Revision Petition is liable to
be dismissed. Accordingly, it is dismissed. No costs. Consequently, connected
Miscellaneous Petition is closed.
11.Considering the fact that the suit is of the year 2015, the Trial Court is
directed to dispose the suit on merits and in accordance with law, as expeditiously as
possible, preferably, within a period of 15 months from the date of receipt of a copy
of this order.
NCC : Yes/No 26.04.2023
Index : Yes/No
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C.R.P.(MD)No.2186 of 2022
Internet : Yes/No
smn2
To
The Principal Sub Judge,
Karur.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2186 of 2022
C.SARAVANAN, J.
smn2
Order made in
C.R.P.(MD)No.2186 of 2022
26.04.2023
https://www.mhc.tn.gov.in/judis
