Case Note & Summary
The dispute arose from a partition suit filed by the respondents (plaintiffs) against the petitioner (defendant) seeking partition and separate possession of suit property and a 1/5th share each. The defendant resisted the claim contending that their father had executed a will bequeathing item No.3 of the plaint schedule property in his favour. The trial court framed issues placing burden on the plaintiffs to prove their entitlement to share and accountability, while the defendant was to prove the will. During proceedings, the plaintiffs filed a memo stating they had no evidence to lead at that stage and reserving their right to lead rebuttal evidence, requesting the defendant to lead evidence. The defendant opposed this. The trial court allowed the memo, set the plaintiffs' evidence as nil for the time being, and directed the defendant to lead evidence. The defendant challenged this order under Article 227 of the Constitution of India. The petitioner argued that the plaintiffs bore the burden of proving issues 1 and 3, and therefore must lead evidence on those issues before the defendant; the plaintiffs could only reserve evidence on issue 2. The respondents contended that the court had discretion to call upon any party to lead evidence, relying on a previous Orissa High Court decision. After considering Order XVIII Rules 1 and 3 of the Code of Civil Procedure, 1908, and following the Bombay High Court's consistent view in Bhagirath Shankar Somani v. Rameshchandra Daulal Soni, the High Court held that Rule 1 gives the plaintiff the right to begin and that Rule 3 allows the plaintiff to reserve evidence on issues where the burden is on the defendant, but the plaintiff must lead evidence first on issues where the burden rests on him. The court cannot direct the defendant to begin. The trial court's order was erroneous as it allowed the plaintiffs to reserve evidence on all issues, which is not permitted. Consequently, the writ petition was allowed, the impugned order was set aside, and the trial court was directed that the plaintiffs shall lead evidence first on issues 1, 3, and 4, while reserving the right to rebuttal on issue 2 after the defendant's evidence.
Headnote
A) Civil Procedure - Right to Begin and Reservation of Evidence - Order XVIII Rules 1 and 3, Code of Civil Procedure, 1908 - The plaintiff has the right to begin, except when the defendant admits facts and contends on law or additional facts that plaintiff is not entitled to relief. Where there are several issues and burden of proving some lies on the defendant, the plaintiff may at his option either produce evidence on those issues or reserve it by way of rebuttal, but the plaintiff must lead evidence first on issues where the burden lies on him. The court cannot direct the defendant to begin unless the defendant himself exercises the right under Rule 1. - Held, the trial court erred in allowing the plaintiffs' memo to reserve evidence on all issues and directing the defendant to lead evidence first; the order was set aside, and the plaintiffs were directed to lead evidence on issues 1, 3, and 4, reserving right to rebuttal on issue 2. (Paras 8-13)
Issue of Consideration
Whether the trial court was justified in permitting the plaintiffs to reserve their right to lead evidence on all issues and directing the defendant to lead evidence first, in view of Order XVIII Rules 1 and 3 of the Code of Civil Procedure, 1908.
Final Decision
The writ petition was allowed. The impugned order dated 10.11.2021 was set aside. The trial court was directed that the plaintiffs shall lead evidence first on issues 1, 3, and 4, and they may reserve their right to lead rebuttal evidence on issue 2 after the defendant's evidence.
Law Points
- Legal points not extracted
- right to begin under Order XVIII Rule 1 CPC
- plaintiff generally begins
- exception when defendant admits facts and contends on law or additional facts
- several issues and burden on defendant under Order XVIII Rule 3 CPC allows plaintiff to reserve evidence on defendant's issues and lead rebuttal
- court cannot direct defendant to begin
- plaintiff must lead evidence on issues where burden lies on him
