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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Under which circumstances the court can direct defendant to adduce his evidence first?

Thus, in view of the aforesaid, it is clear that if the defendants are able to prove the issues no. 1 and 2 with respect to which the onus is on defendant no. 1 and defendant no. 3 respectively, then it will facilitate and streamline the whole trial and also shorten the litigation. If the defendant no. 1 is successful in discharging the onus that Will dated 12.07.2016 was the last Will executed by the father of the parties, then the suit of the plaintiff is bound to fail and she will not be entitled to any relief. Likewise, if defendant no. 3 is able to prove that the father of the parties validly and legally executed his last Will dated 05.09.2014, by which all the parties were endowed with certain shares in the suit properties, then also the whole case will be decided accordingly. There would be no necessity to delve in the further aspects of the matter. Accordingly, it will be in the fitness of things if the defendants are directed to lead evidence first on the issues qua which onus is cast upon them. {Para 25}

26. A Coordinate Bench of this Court in the case of Achala Mohan Vs Jayashree Singh, reported as MANU/DE/0798/2020 has held as follows:-

“19. Thus, the consistent view has been that if the Defendant sets up a case, the proving of which, would completely decide the issues which have been raised in the suit itself, then the Defendant under Order XVIII Rule 1 CPC can be directed to lead evidence first.

25. The ld. counsel for the Defendant submits that unless and until the Defendant voluntarily opts for leading evidence first, the Court would not have the power to direct so. This would not be in accordance with law inasmuch as the Court has the power to curtail the trial of any suit at the time of framing of issues. The manner in which the issues have been framed in the present case shows that insofar as the issue no.1 and issue no.2, the onus has been cast clearly on the Defendant. If the Defendant is able to prove or not prove these issues, the decision in the suit would get quite expedited.

26. Under these circumstances, it is not necessary that in every suit, unless and until, the Defendant opts, the Court cannot direct the Defendant to lead evidence first. The question as to whether who should lead evidence first, would have to be decided by the Court after ascertaining the respective stands of the parties and after seeing as to what are the actual issues which arise for adjudication in the suit itself.”

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on:18th July, 2022

CS(OS) 587/2017 & I.A.No.10136/2018

SMT. POONAM BHANOT Vs VIRENDER SHARMA & ORS

CORAM:

HON'BLE MS. JUSTICE MINI PUSHKARNA

Decided on:18th July, 2022

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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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Whether court can direct defendant to lead evidence first?

 In Bhagirath Shankar Somani v. Rameshchandra Daulal Soni, MANU/MH/0306/2007 : 2007 (5) Mh.L.J. 508 : 2007(4) ALL MR 514, this Court concluded that if the Defendant decides to lead evidence first and is so permitted by the Court, the Plaintiff can always lead evidence in rebuttal. The Trial Court does not have the power to issue a direction to the Defendant compelling him to lead his evidence before the Plaintiff adduces his evidence under Order 18 Rule 1. Only when the Defendant claims a right to begin under Rule 1 and the Plaintiff disputes existence of such right, the Court will have to decide the question whether, the Defendant has acquired a right to begin.

21. This Court, in Dattatray Namdeo Patil v. Ram Namdeo Patil and others, MANU/MH/0403/2010 : 2010(3) Mh.L.J. 801, dealt with a similar issue and concluded in paragraphs 3 and 4 that Rules 1 and 2 of Order 18 of the Code of Civil Procedure would entitle the Defendant, who admits the fact, to begin the recording of his evidence first. It is an enabling provision. If the Defendant applies and makes a request or claims such a right, the Court may pass an order permitting the Defendant to step into the witness box first.

22. In Metafield Coil Private Limited v. Nikivik Tube Industries Private Limited, MANU/MH/1909/2011 : 2012 (1) Mh.L.J. 289, while considering such an issue under Order 18 Rule 1, this Court concluded that a consistent view taken by the courts is that a direction against the Defendant to lead evidence before the Plaintiff leads his evidence, cannot be issued under Order 18 Rule 1. The scheme of law appears to be that of a normal rule and it would be a 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. After the Plaintiff exercises his option to lead evidence first, it is for the Defendant to decide whether, he would like to lead evidence and make such a formal request to the Court. If the Court permits the Defendant to lead evidence first, the Plaintiff can always lead evidence in rebuttal. The Court does not have the power to issue a direction to the Defendant so as to compel him to step into the witness box first and lead evidence.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 781 of 2003 and Civil Application No. 7105/2014 in WP/781/2003

Decided On: 15.09.2017

 Zainabee Vs. Shivkumar and Ors.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: AIR 2018(NOC) 709 Bom

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