Can the Plaintiff Ask the Defendant to Adduce Their Evidence, Reserving the Liberty to Lead Evidence in Rebuttal After Presenting Their part Evidence?

 It will be also necessary to refer to Rule 3 of Order XVIII which reads thus:

3. Evidence where several issues. Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case. {Para 11}

12. Rule 1 recognises that ordinarily it is the Plaintiff who has a right to begin by leading his evidence. The only exception is where the Defendant admits the facts alleged by the Plaintiff and contends that either on point of law or on some additional facts alleged by the Defendant that the Plaintiff is not entitled to any part of the relief which he seeks. In such a case, the Defendant has right to begin. Rule 3, deals with a contingency where burden of proving some of the issues is on the Defendant. In such a case Rule 3 gives an option to the Plaintiff to produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party. When the Plaintiff exercises such option, he can produce the evidence on said issues by way of rebuttal after the Defendant has produced all his evidence.

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 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 of such a right, the Court will have to decide the question whether the Defendant has acquired a right to begin.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2810 of 2007

Decided On: 04.06.2007

 Bhagirath Shankar Somani and Ors.  Vs. Rameshchandra Daulal Soni and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka, J.

Citation: MANU/MH/0306/2007,(2007)5 MHLJ 508.

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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

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Whether court can direct defendant to lead evidence first?

 In view of the above, it is no longer res integra that the court does not have the power under Order 18 Rule 1, much less, under Order 18 Rule 2 to entertain an application of the plaintiff for issuance of directions to the defendant to lead evidence first. The right to begin will always be with the plaintiff unless the defendant makes a request to the court that he would like to exercise the right to begin before the plaintiff steps into the witness box and in which case, an application by the defendant could be considered if the plaintiff has any objection, thereby, inviting a judicial order. In short, the defendant may have the liberty to claim the right to begin.

25. In a given case, the plaintiff may enter a purshis to state that the onus and burden of proving any issue has not been cast on him and therefore, he would not like to begin. After such a purshis is entered and upon verifying the issues, if the court is convinced that the plaintiff does not desire to lead any evidence as no burden is cast on him, the court may record such a contention and then, the defendant could step into the witness box and lead evidence. However, the court cannot exercise the jurisdiction to entertain the prayer of the plaintiff on an application to pass a judicial order directing the defendant to lead evidence first. The court can only entertain the purshis of the plaintiff stating that he does not desire to lead evidence as no burden is cast on him and if convinced, the court may accept the purshis and give liberty to the defendant to lead evidence first.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 12117 of 2018

Decided On: 01.11.2018

 Shivaji Laxman Palaskar  Vs.   Kamal Raosaheb Shipalkar 

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2019(3) MHLJ 295

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Whether husband can compel wife to adduce her evidence reserving his right to adduce evidence?

The Family Court was right in rubbishing the claim of the husband that he did not wish to lead evidence "at this stage". There was no other stage. There was no better stage. The evidence had begun. Only that issue of fact had to be determined. The husband had to discharge the burden that lay on him upon his case or repaying the wife the consideration that she paid for the disputed flat, the onus of which lay squarely upon him. The Family Court was also right in granting the last chance to the husband in the order dated 24th July, 2013. In fact this Court may hasten to add that the last chance was rather delayed. The most favoured "right" of a party in our justice system is the "right" to delay the trial. The Family Court granting five adjournments to the husband to prove his case was not even warranted. The Family Court was again right in accepting the last chance and closing the evidence of the husband since the husband neither appeared nor filed his affidavit of examination in chief nor in any manner showed any evidence to prove his tall claim of repayment of the entire consideration of the disputed flat to the wife and in fact gave no instructions whatsoever to his advocate.

70. Discipline of work which is the only casualty in the Courts upon mollycoddling a party by way of numerous adjournments to even give instructions to his own advocate, to show the proof of his own statement of fact and allowing him to liberty to misuse the Court's indulgence by insisting upon the wife giving evidence when there is no evidence to lead would negatively reflect upon the Court itself. This Court is gratified to note that at least as late as on 22nd August, 2013 the Court called it a day and closed the husband's evidence. The wife would lead evidence, if any, that she would require to lead. The proceeding which commenced upon a truthful case admitted by the husband would see its end upon additional case of the husband that never is shown.

71. This is, therefore, not a case where the wife must be enjoined to lead some evidence no matter what as the husband has the "right to begin" and not the "right to delay" the trial. Consequently all the aforesaid orders of the Family Court, Mumbai dated 26th March, 2013, 24th July, 2013 and 22nd August, 2013 are correct and confirmed.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 7615 and 8555 of 2013

Decided On: 21.11.2013

 Sandip Sankarlal Kedia Vs.  Pooja Sandip Kedia

Hon'ble Judges/Coram:

R.S. Dalvi, J.

Citation; 2014 (1) MH LJ 423

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