Case Note & Summary
The matter arose from a writ petition filed before the High Court of Judicature at Bombay, Bench at Aurangabad, challenging an interlocutory order passed by the Civil Judge Senior Division, Shrirampur in a pending suit. The underlying suit was Regular Civil Suit No.108 of 2013, in which the plaintiff sought declaration, perpetual injunction and fixation of boundaries against the defendants. The present writ petition was directed against the order dated 16.12.2024 rejecting the plaintiff's application Exhibit-197, which had sought a direction that the defendants conclude arguments before the plaintiff. In the trial court, the plaintiff had recorded evidence first and filed an evidence close pursis on 07.07.2024 below Exhibit-185. Subsequently, the defendants recorded their evidence and filed an evidence close pursis on 07.08.2024 below Exhibit-189. Thereafter, the plaintiff filed an application below Exhibit-197 contending that because the defendants had closed their evidence last, they were required under Order XVIII Rule 2(2) and (3) of the Code of Civil Procedure, 1908 to address arguments first, after which the plaintiff would have a right to reply generally on the whole case. The trial court rejected the application, observing that there was no mandate in law to direct defendants to conclude arguments first and that the application was an attempt to protract litigation. The core legal question was whether sub-clauses (2) and (3) of Rule 2 of Order XVIII of the Code of Civil Procedure are mandatory and whether a party can insist that the opposite party argue first. The petitioner contended that the provision obliged the party who led evidence later to argue first, relying on judgments of a Single Judge of the Bombay High Court in Gajanan Dhondu Dalvi v. Trishul Construction Company and Sharanappa v. Veerappa R. Maranbassari. The respondents argued that the provisions were enabling, not mandatory, and that no party had a right to seek such a direction, relying on Supreme Court decisions in Jami Venkata Suryaprabha v. Tarini Prasad Nayak and Shivaji Laxman Palaskar v. Kamal Raosaheb Shipalkar. The High Court examined the provision and noted that Rule 2 of Order XVIII deals with the stage of hearing: the party having the right to begin states his case and produces evidence, the other party then states his case, produces evidence and may address the court generally, and the party beginning may reply generally. The court observed that the language uses the word 'may', which indicates that the provisions are directory and for convenience, not obligatory. The court also referred to the Supreme Court's observation that neither party can insist that the other should lead evidence first or address arguments first; it depends upon what the court deems proper. The court accepted that in the ordinary chronology a defendant who led evidence last may be expected to argue first, but held that no party could compel such a sequence. The court found that the trial court had not applied its mind to the factual matrix in accordance with the settled legal position. Accordingly, the High Court set aside the impugned order and remanded the matter to the trial court for fresh consideration of the application in light of the law, directing the trial court to exercise its discretion judiciously. The writ petition was partly allowed and rule made absolute.
Headnote
A) Civil Procedure - Order XVIII Rule 2 CPC - Sequence of Arguments - Rule 2(2) and (3) Use 'May' and Are Directory, Not Mandatory - Code of Civil Procedure, 1908, Order XVIII Rule 2 - The plaintiff sought a direction that the defendants, who closed evidence last, argue first; the High Court considered whether the rule was mandatory. The court held that the provision is enabling, and no party can insist that the opposite party address the court first; it depends on judicial discretion. (Paras 7-11) B) Civil Procedure - Exercise of Judicial Discretion - Trial Court Must Apply Mind to Facts and Settled Law - Code of Civil Procedure, 1908, Order XVIII Rule 2 - The trial court rejected the application without considering the legal position; the High Court set aside the order and remanded the matter for fresh consideration, directing the trial court to exercise discretion judiciously. Held that the writ petition was partly allowed and rule made absolute. (Paras 12-13)
Issue of Consideration
Whether provisions of sub-clauses (2) and (3) of Rule 2 of Order XVIII of Code of Civil Procedure are mandatory in nature and whether any party can insist upon other party to begin first or argue matter first
Final Decision
Writ Petition partly allowed; impugned order dated 16.12.2024 passed by Civil Judge Senior Division, Shrirampur below Exhibit-197 set aside; matter remitted to trial court for reconsideration of application in light of law and to pass appropriate orders exercising discretion judiciously; Rule made absolute.
Law Points
- Order XVIII Rule 2 CPC is directory not mandatory
- term 'may' indicates enabling provision
- no party can insist other party argue first
- court has discretion to sequence arguments based on facts
- right to begin evidence does not necessarily dictate order of final arguments
- trial court must exercise discretion judiciously
