Order XVIII Rule 1 CPC| Plaintiff Has Right To Begin Evidence; But Court Can Ask Defendant To Prove A Plea First If It Strikes At Root Of The Case: SC
The Supreme Court recently clarified that Order XVIII Rule 1 of the Civil Procedure Code, 1908 provides for the plaintiff's right to begin the evidence but not the court's obligation to ask the plaintiffs to begin first.
Where the Court finds that the defendant's plea strikes at the root of the case, there would be no hitch in asking him/her to prove such a plea first which can lead to disposal of the case, the Court said.
The Special Leave Petition arose from the order passed by the Orissa High Court rejecting the order of the Civil Judge (Senior Division) and affirming the order of the Civil Judge. The Civil Judge had rejected the application filed by the petitioners herein in the capacity of being a plaintiff under Order XVIII Rule 1 of the Civil Procedure Code, 1908.
The Division Bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan asserted, “Order XVIII of the Code of Civil Procedure in terms speaks of the ‘hearing’ of a suit and not the trial of the suit. A court is concerned with the trial of a suit from the time when it is instituted. The hearing of a suit is only a part of the trial of the suit. The determination of the question as to which party has a right to begin is an integral part of the hearing itself.”
Advocate Prabhati Nayak appeared for the Petitioners.
The Petitioners, in this case, had instituted a suit for specific performance of contract based on an agreement of sale which was said to have been executed by the respondents(defendants) in their favour. The respondents herein filed their written statement stating that the averments in Para 6 of the Plaint that defendants though received the said letter sent by ordinary post, and knowing well in advance the contents of the Redg. Letter and the letter sent by courier they refused to receive are all dales and concocted stories of the plaintiff only to make a cause of action for the present proceedings.
The petitioners herein as plaintiffs preferred an application before the trial court under Order XVIII Rule 1 of the Civil Procedure Code, 1908 with a prayer that as the defendants are not disputing the agreement of sale, the defendant should be asked to begin to lead oral evidence.The trial court rejected the application. The High Court also declined to interfere and in such circumstances, the petitioners approached the Apex Court.
Referring to Order XVIII Rule 1 of the CPC, the Court explained that as a general rule, according to the procedural law, no doubt it is the plaintiff who has to prove his claim by positive proof, for the court has to see whether there is a proof of claim before it needs to enquire, as to the truth or otherwise of the defence. “It is open to the plaintiff to say that although he has the right to begin, yet he may rest content with relying upon the averments made in the written statement”, it added.
The Bench further said, “Yet evidence need not always be led by the party who has the right to begin and on whom lies the burden of proof; it is open to him to sustain the onus by facts which he may elicit in cross examination of the other party or his witnesses. In order to come to the conclusion, concerning on whom the legal burden of proof rests, in addition to the substantive law, the pleadings of the parties coupled with documents that they produced & the admissions, if any concerning such documents have to be taken into account.”
As per the Bench, the The High Court rightly opined that although the defence has admitted the existence of a document that is “agreement of sale”, yet they have specifically said that the same is a sham transaction. “The High Court is right in saying that the averments made in the written statement sought to be relied upon by the plaintiff does not ipso facto be construed to be admission of materials facts in the alleged plaint”, it said.
Further reliance was placed upon section 102 of the Evidence Act and it was observed that the burden of proof rests on the party who would fail if no evidence at all were given on either side. Where the defendant admits the facts alleged by the plaintiff but contends that the plaintiff is not entitled to any part of the relief which he seeks, it is the defendant who gets the right to begin.
“Order XVIII Rule 1 indeed provides for the 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 at the root of the case, there would be no hitch in asking him/her to prove such a plea first which can lead to disposal of the case”, the Bench explained.
Thus, finding no reason to interfere with the impugned order passed by the High Court, the Bench disposed of the SLP.
Cause Title: Jami Venkata Suryaprabha & Anr. v. Tarini Prasad Nayak & Ors (Neutral Citation: 2024 INSC 1001)
Appearance:
Petitioners: Advocates Prabhati Nayak, Umakant Misra, Debabrata Dash, Apoorva Sharma, Shivangi Gupta, AOR Niranjan Sahu
