jpc wp9388-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 9388 2009 Gopal Changu Patil ... Petitioner Versus Hasuram Mahadu Patil and others ... Respondents Mr. P. S. Dani for the petitioner Mr. S. V. Gavand for the respondents. CORAM: R. M. SAVANT, J. DATED : 24th November, 2011 P.C. : 1. Rule, with the consent of the parties, made returnable forthwith and heard. 2. The issue which usually crops up as regards whose right is to begin in a suit has once again cropped up in the present proceedings. 3. The petitioner who is original defendant takes exception to the order dated 25th March, 2009 by which order, the trial Court, i.e. the learned Civil Judge, Senior Division, Pen has directed the defendant to step into the witness box and lead his evidence in the first instance. jpc wp9388-09.sxw 2 The petitioner also takes exception to the order dated 2nd September, 2009 by which the Review application filed by the petitioner came to be rejected. 4. Shorn of unnecessary details, a few facts can be stated thus: The respondents herein are the original plaintiffs who have filed Regular Civil Suit No. 114 of 2008 for partition and for declaration. It is the case of the plaintiffs that they have half share in the property mentioned in para 1-B of the plaint. The plaintiffs have therefore, sought partition and separate possession to the said extent. In the said suit, the defendant has filed his written statement and also a counter claim. It is the case of the defendant that there is no joint family property as the ancestral properties had already been partitioned more than 30 years back. The defendant claims exclusive right to the suit property, which is the subject matter of the counter claim. In the light of the pleadings of the parties, three issues were framed at Exh.21-B. The issues are to the following effect: i. Whether the defendants prove that there is a prior partition of the suit property ? ii. Whether the plaintiffs are entitled for partition and to what share ? iii. Whether the plaintiffs are entitled to the declaration ? jpc wp9388-09.sxw 3 In the light of the defence of the defendant in his written statement of there being a prior oral partition, the trial court, by the impugned order dated 25th March, 2009, directed the defendants to first step into the witness box and adduce his evidence. As mentioned herein above the said order has been taken exception to in the above petition. The defendant had therefore filed an application for review of the impugned order dated 25th March, 2009 which application came to be rejected by order dated 2nd September, 2009. 5. The question which arises for consideration is whether the trial Court could order the defendant to lead his evidence first. For an answer to the controversy, it would be necessary to advert to Order 18 Rule 1 and 3 of the Code of Civil procedure and more especially, order 18 Rule 1 which reads thus: "Rule-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.” Rule 3. Evidence where several issues._ Where there are jpc wp9388-09.sxw 4 several issues, the burden of provi9ng 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." 6. It is therefore postulated in Rule 1 of Order 18 that ordinarily, it is the plaintiff who has to begin by leading his evidence. The only exception is where 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 such a case the defendant would have a right to begin. 7. In so far as Rule 3 is concerned, the same deals with the contingency where the burden of proving some of the issues is on the defendant. In such as a case, a sort of safeguard is provided to the jpc wp9388-09.sxw 5 plaintiff, inasmuch as an option is given to the plaintiff to produce evidence on those issues or reserve it by way of an answer to the evidence produced by the other party. Therefore, in terms of Rule 3, the plaintiff can exercise an option of producing rebuttal evidence to the evidence of the defendant on those issues. 8. As indicated above, the question which is posed is whether the Court has the power to direct the defendant to first step into the witness box before the plaintiff leads his evidence. The issue is no more res- integra and is covered by more than one judgment of this Court; a reference could be made to the judgment of the learned Single Judge of this Court (A.S. Oka, J.) in the case of Bhagirath Shankar Somani Vs. Rameshchandra Daulal Soni, reported in 2007 (4) ALL MR 514. The said judgment is the last in line of the judgments on the said issue. The learned Judge, after considering the judgments of the learned Single Judges of this Court, has concluded in paragraph 16 thus: “16. Thus, the consistent view taken by this Court is that a direction against the Defendant to lead evidence before the Plaintiff leads evidence cannot be issued under sub rule 1 of Order XVIII of the said code. The scheme of Rule 1 appears to jpc wp9388-09.sxw 6 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 the trial Court stating that as the case is covered by exception in Rule 1 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 Plaintiffs 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, 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.” jpc wp9388-09.sxw 7 9. This Court has, therefore, consistently held that the Court has no power to issue direction to the defendant compelling him to lead his evidence before the plaintiff adduces his evidence. It is only when the defendant claims a right to begin under Rule 1 and the plaintiff disputes the existence of such right, the Court will have to decide wither the defendant has acquired a right to begin. 10. Though the learned counsel for the petitioner sought to draw my attention to the other judgments of the learned Single Judges of this Court, in my view it is not necessary to refer to those judgments as it would unnecessarily burden this judgment. Moreover, all the said judgments have been considered by A. S. Oka, J. in Bhagirat Shankar Somani case(supra) which as mentioned hereinabove, is the last in line of the judgments on the said aspect. 11. It is sought to be contended by the learned counsel Shri Gavand appearing for the respondents i.e. the original plaintiffs that the facts of the present case are slightly different, inasmuch as the counter claim has been filed by the defendant and therefore, in terms of Order 6-A of Order 8 since the counter claim is to be tried as a suit, the order directing the defendant to first lead evidence cannot faulted with. In my jpc wp9388-09.sxw 8 view, the said fact of filing of the counter claim would not make any material difference as the counter claim is always filed in a suit and what Order 6-A only mandates is that the said counter claim has to be adjudicated in the manner of a suit. 12. Having regard to the consistent view taken by this Court, in my view, the orders dated 25th March, 2009 and 2nd September, 2009 impugned in the present writ petition are unsustainable. The same are accordingly quashed and set aside and the trial court is directed to proceed with the hearing of the suit in accordance with law. Writ petition is accordingly made absolute to the said extent. Parties to bear their own costs. (R. M. SAVANT, J.)