Saturday, 26 October 2019

When defendant shall have right to begin?

 Order 18 Rule 1 CPC, which is hub of the issue, is quoted hereunder:

"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."

In Purastam alias Purosottam Gaigouria and others (supra), the Division Bench of this Court in para-5 of the report held thus:

"5. In this case, the plaintiff sought partition alleging that the property was joint family property and had not been decided by metes and bounds. The defendant-petitioners placed a previous partition since 1960-61 to defeat the plaintiff's suit. In view of the plea of the defendants that there was a previous partition, the learned Subordinate Judge called upon the defendants to begin. The plaintiff's plea that the property was joint family property having been admitted by the defendants and the latter having pleaded previous partition, the defendants are to lose if neither party adduced evidence, the burden being on the defendants to prove previous partition. Only when the defendants lead some evidence in proof of previous partition, the plaintiff would be obliged to lead evidence in rebuttal...."

IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No. 1306 of 2018

Decided On: 19.11.2018

 Shradhamani Panda  Vs. Chintamani Panda Ors.

Hon'ble Judges/Coram:
Dr. Akshaya Kumar Rath, J.

Citation: AIR 2019(NOC) 425 Orissa


1. By this petition under Article 227 of the Constitution, challenge is made to the order dated 4.8.2018 passed by the learned Addl. Senior Civil Judge, Puri in C.S. No. 503 of 2015 whereby and whereunder the learned trial court allowed the application of the plaintiff under Order 18 Rule 1 CPC and directed the defendants to begin first.

2. Plaintiff-opposite party instituted the suit for partition impleading the petitioners as defendants. Defendants entered contest and filed written statement pleading, inter alia, that Schedule-A property was renovated and developed by their father Krushna Chandra Panda. Schedule-B property is not partiable. After death of their father, they became the exclusive owners of the suit property. While the matter stood thus, the plaintiff filed an application under Order 18 Rule 1 CPC for a direction to the defendants to begin first. Defendants filed objection to the same. Learned trial court allowed the application.

3. Heard Mr. Bibekananda Bhuyan, learned counsel for the petitioner.

4. The sole question that hinges for consideration before this Court as to whether the defendants shall begin first?

5. Order 18 Rule 1 CPC, which is hub of the issue, is quoted hereunder:

"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."
6. In Rama Krushna Mohanty and another v. Bala Krushna Mohanty and others, MANU/OR/1020/2017 : 2018 (I) CLR 89, this Court held thus:

"In Balakrishna Kar and another Vrs. H.K. Mahatab, MANU/OR/0057/1954 : AIR 1954 Orissa 191, a Division Bench of this Court held that it should therefore be borne in mind that the right to begin is not the same as the adducing of evidence in support of a party's case. There is a distinction between the two.

In Purastam alias Purosottam Gaigouria and others (supra), the Division Bench of this Court in para-5 of the report held thus:

"5. In this case, the plaintiff sought partition alleging that the property was joint family property and had not been decided by metes and bounds. The defendant-petitioners placed a previous partition since 1960-61 to defeat the plaintiff's suit. In view of the plea of the defendants that there was a previous partition, the learned Subordinate Judge called upon the defendants to begin. The plaintiff's plea that the property was joint family property having been admitted by the defendants and the latter having pleaded previous partition, the defendants are to lose if neither party adduced evidence, the burden being on the defendants to prove previous partition. Only when the defendants lead some evidence in proof of previous partition, the plaintiff would be obliged to lead evidence in rebuttal...."
7. On the anvil of the decision cited supra, the instant case may be examined. The plaintiff has instituted the suit for partition of the suit schedule properties. The defendants have filed the written statement stating inter alia that Schedule-A property was renovated and developed by their father Krushna Chandra Panda. Schedule-B property is not partiable. After death of their father, they became the exclusive owners of the suit property. In view of the decision in the case of Rama Krushna Mohanty (supra), the defendants shall begin first. Only when the defendants lead some evidence in proof of their case, the plaintiff shall be obliged to lead evidence in rebuttal.

8. In the wake of the aforesaid, the petition, sans merit, is dismissed. No costs.


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