Case Note & Summary
The petitioner, original defendant no.4, challenged an order dated 22 July 2008 passed by the learned Joint Civil Judge, Junior Division, Panvel, which allowed the plaintiff's application and directed the defendants to begin evidence in a suit for partition and separate possession of ancestral property. The suit was filed by the plaintiff seeking partition, claiming he was separated from 1979. The defendants admitted that the suit property was ancestral but contended that the plaintiff was not entitled to partition. The plaintiff filed an application under Order XVIII Rule 1 of the Code of Civil Procedure, 1908 (CPC) seeking a direction that the defendants begin evidence. The trial court allowed the application, observing that defendant no.4 had to begin evidence. The petitioner argued that the right to begin under Order XVIII Rule 1 is an enabling provision and cannot be invoked by the plaintiff to compel the defendant. The High Court, relying on Bhagirath Shankar Somani & anr. vs. Rameshchandra Daulal Soni & anr., 2007 (5) Mh.L.J. 508, held that the court has no power to direct the defendant to lead evidence first unless the defendant claims such right. The order was quashed and set aside, and the plaintiff's application was rejected. The court directed the trial court to proceed in accordance with law.
Headnote
A) Civil Procedure - Right to Begin Evidence - Order XVIII Rule 1 CPC - Enabling Provision - The right of a defendant to begin evidence under Order XVIII Rule 1 CPC is an enabling provision, not mandatory. The court cannot compel a defendant to lead evidence first unless the defendant claims such right. The plaintiff cannot insist or compel the defendant to begin evidence. (Paras 3-5)
B) Civil Procedure - Burden of Proof - Partition Suit - Admission of Ancestral Property - In a suit for partition, mere admission that property is ancestral does not entitle the plaintiff to compel the defendant to begin evidence. The court must consider the overall pleadings and burden of proof. (Paras 2-3)
Issue of Consideration
Whether the trial court could direct the defendant to begin evidence under Order XVIII Rule 1 CPC when the defendant did not claim such right and the plaintiff filed the application
Final Decision
The impugned order dated 22 July 2008 passed by the learned Joint Civil Judge, Junior Division, Panvel is quashed and set aside. The application filed by the plaintiff is rejected. The trial court is directed to proceed with the matter in accordance with law.
Law Points
- Right to begin evidence under Order XVIII Rule 1 CPC is an enabling provision
- not mandatory
- Court cannot compel defendant to lead evidence first unless defendant claims such right
- Plaintiff cannot insist defendant to begin evidence
Case Details
2010 LawText (BOM) (04) 102
Writ Petition No. 5838 of 2008
Mr. P. S. Dani for the petitioner, Mr. Machhindra Patil for respondents 1, 3, 4, 5, 7, 8 & 10
Ram Namdeo Patil & others
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Nature of Litigation
Civil writ petition challenging an order in a partition suit directing defendants to begin evidence
Remedy Sought
Petitioner (original defendant no.4) sought quashing of the trial court order directing defendants to begin evidence
Filing Reason
The trial court allowed the plaintiff's application under Order XVIII Rule 1 CPC and directed the defendants to begin evidence, which the petitioner challenged as being without jurisdiction
Previous Decisions
The trial court passed the impugned order below Exhibit 90 dated 22 July 2008 allowing the plaintiff's application
Issues
Whether the trial court could direct the defendant to begin evidence under Order XVIII Rule 1 CPC when the defendant did not claim such right
Whether the right to begin under Order XVIII Rule 1 is an enabling provision or mandatory
Submissions/Arguments
Petitioner argued that the right to begin under Order XVIII Rule 1 is an enabling provision and cannot be invoked by the plaintiff to compel the defendant to begin evidence
Respondents (plaintiff) argued that since defendants admitted the suit property was ancestral, they should begin evidence
Ratio Decidendi
The right of a defendant to begin evidence under Order XVIII Rule 1 CPC is an enabling provision, not mandatory. The court cannot compel a defendant to lead evidence first unless the defendant claims such right. The plaintiff cannot insist or compel the defendant to begin evidence.
Judgment Excerpts
Rules 1 & 2 of Order XVIII of CPC entitle the defendant, who admits the facts, to begin the case first. It is an enabling provision. It is not mandatory.
The Court cannot direct the defendant to begin the case in such fashion.
The learned Judge of this Court (Abhay S. Oka, J.) ... observed as under: '... 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.'
Procedural History
The plaintiff filed a suit for partition and separate possession. The plaintiff filed an application under Order XVIII Rule 1 CPC seeking direction to defendants to begin evidence. The trial court allowed the application on 22 July 2008. The petitioner (defendant no.4) challenged the order by filing Writ Petition No. 5838 of 2008 before the Bombay High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order XVIII Rule 1, Order XVIII Rule 2
