SCA/1253/2007 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1253 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= AMRUTLAL PARAGJI DESAI - Petitioner(s) Versus SMT.JAYABEN HARIBHAI PATEL - Respondent(s) ========================================================= Appearance : MR JB PARDIWALA for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MR MP SHAH for Respondent(s) : 1, MS. KRUTI M SHAH for Respondent(s) : 1, None for Respondent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6 ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 21/07/2008 ORAL JUDGMENT 1. Rule. Ms. Kruti Shah, learned advocate wavies service of notice of admission on behalf of the respondents. With the consent of the parties, the SCA/1253/2007 2/19 JUDGMENT matter is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioner-original defendant has prayed for an appropriate writ, direction and / or order quashing and setting aside order passed by the learned 4th Additional Senior Civil Judge, Valsad dated 20.9.2005 below Exh. 89 in Regular Civil Suit No. 179 of 1995, whereby the application Exh. 89 preferred by the original plaintiff respondent herein under the provisions of Order 18 Rule 1 and Rule 3 of the Code of Civil Procedure came to be partly allowed against the petitioner-original defendant by directing the petitioner defendant to enter the witness box first and lead the evidence. 3. Respondents are the heirs of original plaintiff Haribhai Bhimjibhai Patel who instituted Special Civil Suit No. 179 of 1995 in the Court of learned Senior Civil Judge, Valsad against the petitioner- defendant for specific performance of contract based on an agreement to sale dated 25.8.1991 with respect SCA/1253/2007 3/19 JUDGMENT to the suit property. The petitioner-defendant filed his written statement denying the claim of the plaintiff contending that the petitioner has not abide by the terms and conditions of the contract and that he was never ready and willing to perform his part of obligation. It was also contended that the suit is time barred. The issues came to be framed by the learned trial Court vide Exh. 59. That, thereafter almost after a period of 2 years, plaintiff submitted the application Exh. 89 invoking the provisions of Order 18 Rule 1 & 3 of the Code of Civil Procedure and prayed that in view of the fact that the defendant had admitted that there was an agreement to sale of the year 1991, the defendant should first step into the witness box and lead his evidence. It was also contended by the plaintiff that it is only after the defendant completes his evidence that he will lead if necessary. The learned trial Court partly allowed the said application by the impugned order holding that the plaintiff should declare as to on which issues he is not inclined to lead evidence and after the declaration by the plaintiff in this regard, the petitioner-defendant SCA/1253/2007 4/19 JUDGMENT shall step into the witness box and start leading evidence. Being aggrieved and dissatisfied with the impugned order passed below Exh. 89, the petitioner- defendant has preferred Special Civil Application under Article 227 of the Constitution of India. 4. Shri J.B. Pardiwala, learned advocate appearing for the petitioner-defendant has vehemently submitted that the learned trial Court has not properly appreciated that just because the defendant has admitted about the agreement to sale executed in the year 1991, by itself is not sufficient for the plaintiff to contend that the defendant has admitted the claim as prayed in the suit, hence the defendant must enter the box and begin to lead the evidence. It is submitted that under Order 18 Rule 1 of the Code of Civil Procedure, the procedure to be adopted at a trial is that the plaintiff has the right to begin unless the defendant admits the fact 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 the case the SCA/1253/2007 5/19 JUDGMENT defendant has the right to begin. It is further submitted that under Order 18 Rule 2 the party having right to begin shall state his case and produce evidence in support of the issues which he is bound to prove. It is submitted that in the present case, the learned trial Court has framed the issues calling upon the plaintiff to prove firstly that the plaintiff is ready and willing to perform his part of the agreement and secondly, he is entitled for the alternative decree of damages. It is submitted that considering the above issues framed by the learned trial Court, the plaintiff should have been called upon to state his case first and adduced evidence in support of his claim that after entering into an agreement to sale of the suit property with the defendant on 25.8.1991 he performed each and every part of his obligation and that he was/is ready and willing to perform his part of the agreement. It is further submitted that the learned trial Court has confused itself between the right to begin and the proof required in support of the plaintiff case. It is submitted that it might be that the defendant has admitted the agreement to sale but it cannot be said SCA/1253/2007 6/19 JUDGMENT the defendant also admitted that the plaintiff was ready and willing to perform his part of the agreement. It is further submitted that Sections 101, 102 and 103 of the Evidence Act lay down the Rules to be followed in determining on whom the onus lies of proving a particular facts. It is submitted that the allegations essential for the support of a parties the case may be a negative in form but affirmative in essence. It is further submitted that there has been a clear breach of the provisions of Rules 1 & 2 of Order 18 of Code of Civil Procedure as well as Section 135 of the Evidence Act. It is submitted that Section 135 of the Evidence Act speaks about the order of production and examination of witnesses. Shri J.B. Pardiwala, learned advocate for the petitioner has relied upon the decision of the Orissa High Court in the case of Balakrishna Kar and another Vs. H.K. Mahatab reported in A.I.R.1954 Orissa, 191 and the decision of the Bombay High Court in the case of Haran Bidi Suppliers & Anr Vs. M/s. V.M. & Co. reported in 2001(4)CCC 415 (Bom). Therefore, it is requested to allow the present petition. SCA/1253/2007 7/19 JUDGMENT 5. Ms. Kruti Shah, learned advocate appearing for the respondent while opposing the present Special Civil Application has submitted that in the facts and circumstance, when the defendant has admitted the execution of the agreement to sale in the written statement and when the plaintiff is relying upon the same, the learned trial Court has rightly allowed the application submitted by the original plaintiff by directing the defendant to adduce the evidence first and enter the witness box first. Therefore, it is submitted that in above facts and circumstances of the case, the impugned order passed by the learned trial Court does not required any interference of this Court in exercise the power under Article 227 of the Constitution of India. 6. Heard the learned advocates for the respective parties. At the outset, it is required to be noted that the plaintiff has filed the suit for specific performance of agreement to sale dated 25.8.1991. The petitioner-defendant filed the written statement admitting the execution of the agreement to sale SCA/1253/2007 8/19 JUDGMENT dated 25.8.1991, however, further submitting that as the plaintiff was never ready and willing to perform his part of the obligation and has not abided by the terms and conditions of the contract / agreement to sale he is not entitled to decree for specific performance of the agreement to sale dated 25.8.1991. Even, while framing the issues, the learned trial Court has called upon the plaintiff to prove that he has abide by the terms and conditions of contract and that he has performed each and every part of his obligation and is ready and willing to perform his part of the agreement. Thus, for getting the decree of specific performance of the agreement to sale, the plaintiff is required to prove aforesaid by leading evidence. Merely because, the defendant has admitted in the written statement execution of the agreement to sale that by itself will not be entitled the plaintiff to contend that the defendant had admitted the entire claim in the suit and therefore, he has to enter into the box first and lead the evidence. The relevant provisions in the Code of Civil Procedure for hearing of the suit and examination of the witnesses is under Order 18 and Rule 1 of Order 18 SCA/1253/2007 9/19 JUDGMENT provides right to begin and Rule 2 of Order 18 provides for statement and production of the evidence. Rule 1 & 2 of Order 18 are reads as under: "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 relied which he seeks, in which case the defendant has the right to begin. 2. Statement and Production of evidence.- (1) on the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. (2). The other party shall then state his case and produce his evidence (if any) and may then address the court generally on the whole case. (3). The party beginning may then reply generally on the whole case. (3A). Any party may address 'oral arguments in a case and shall before SCA/1253/2007 10/19 JUDGMENT he concludes the oral arguments if any submit if the Court so permits concisely and under distinct headings written arguments, in support of his case to the Court and such written arguments shall form part of the record. (3B). A copy of such written arguments shall be simultaneously furnished to the opposite party. (3C). No adjournment shall be granted for the purpose of filing the written arguments unless the Court for reasons to be recorded in writing, considers it necessary to grant such adjournment. (3D). The Court shall fix such time limits for the oral arguments by either of the parties in a case, as it thinks fit." On fair reading of Rule 1 of Order 18 it is the plaintiff who has the right to begin and it is only an enabling provisions entitling the defendant of right to begin, therefore, the said provisions cannot be interpreted to means that the Court would be competent to direct the defendant to enter the witness box before the plaintiff and lead evidence in SCA/1253/2007 11/19 JUDGMENT support of his case. Only in a case where the defendant admits the facts alleged by the plaintiff and contends that either any point of law or some additional facts alleged by the defendant, the plaintiff is not entitled for any part of relief which he seeks, in that case only the defendant has right to begin. In the present case, on admission of the execution of the sale in the written statement, the learned trial Court has assumed that the defendant has admitted the claim of the plaintiff as prayed for in the suit. Learned advocate appearing for the petitioner-defendant is right in submitting that the learned trial Court has confused itself between the right to begin and the proof required in support of the plaintiff case. 7. Even otherwise, considering the issues framed by the learned trial Court narrated herein above, plaintiff has to prove his case by adducing the evidence that he has performed each and every part of his obligation in the agreement to sale dated 25.8.1991 and that he is ready and willing to perform his part of the agreement. It cannot be disputed that SCA/1253/2007 12/19 JUDGMENT on leading the evidence and proving the aforesaid facts only the plaintiff can get the decree of specific performance of the agreement to sale and for that purpose the plaintiff has to enter the witness box first the lead the evidence and prove his case. Therefore, the learned trial Court has materially erred in allowing the application Exh. 89 directing the defendant to enter the witness box first then the plaintiff and the same is contrary to provisions of Rule 1 & 2 of the Order 18. The view which is being taken by this Court is supported by the decision of the Orissa High Court in the case of Balakrishna Kar and another Vs. H.K. Mahatab (supra) and decision of the Bombay High Court in the case of Haran Bidi Suppliers & Anr. Vs. M/s V/M/ & Co. (supra). In the case before Orissa High Court the plaintiff filed the suit for declaration claiming Rs. 1 lacs as damages for alleged libel on his reputation caused by certain writings in the "Matrubhumi" of which the defendants were the Editor and the Publisher. The defendants case was that the said publication do not constitute libel; they also plead, in the alternative, about fair comment, privilege and justification by truth. SCA/1253/2007 13/19 JUDGMENT The trial Court framed following issues: "Is the plaintiff entitled to recover damages from the defendant; if so how much and from whom? 4. Whether the articles referred to in the plaint and the extract quoted therein were published maliciously? 5. Whether the articles referred to in the plaint and the extracts quoted therein constitute libel on the plaintiff? The plaintiff submitted the application before the learned trial Court to call upon the defendant to begin in the first instances contending that in view of the admission made by the defendants in the written statement regarding the position held by the plaintiff and the publication of the impugned articles, the onus had shifted to the defendants to prove the truth of the articles and the privileged occasion in which they were published. The learned trial Court accepted the contention of the plaintiff and called upon the defendants to begin in the first instance. The said order was challenged before the High Court. The High Court has observed in para 3 4 and 5 as under: SCA/1253/2007 14/19 JUDGMENT "(3) The same contentions have been repeated before us and a number of citations have been made from the text books on the subject of 'Torts'. It appears to us, however, that the statements made in the text-books regarding what the plaintiff has to prove in such suits are not quite relevant to the point that falls to be decided by us. The procedure to be adopted at the trial is laid down in O.18, R.1, Civil P.C., which says that 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 other 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 2 or O.18says that the party having the right to begin shall state his case and produce evidence in support of the issues which he is bound to prove. The issues framed by the learned trial Judge called upon the plaintiff to prove firstly that he impugned publications constituted a libel on the plaintiff and secondly that he is entitled to recover damages and, if so, assess the quantum of damages from the party concerned. On a mere perusal of the issues, it would appear that the plaintiff should have been called upon to SCA/1253/2007 15/19 JUDGMENT state his case and adduce evidence in support of his claim that his reputation has been damaged by the alleged publication of articles which constitute a libel on his character. The lower court appears to have made a confusion between the right to begin and the proof required in support of the plaintiff's case. It may be that the defendant has admitted the publication of the articles but it cannot be stated that he admitted that the articles constituted a libel on the character of the plaintiff. That the plaintiff has a reputation which could be damaged by the alleged libellous writing or that it has been so damaged as to justify the claim is a matter peculiarly within the knowledge of the plaintiff and has to be established by him. Sections 101, 102 and 103, Evidence Act, lay down the rules to be followed in determining on whom the onus lies of proving a particular fact. The allegations essential for the support of a party's case may be negative in form put affirmative in essence. The plaintiff who complains of an attack upon his character or reputation has, in the first place, however cleverly he may frame his allegations in the plaint, to make out that he had a reputation which had been damaged by the writing complained against. SCA/1253/2007 16/19 JUDGMENT “ The true rule in such cases is laid down in Ameer Ali's commentary on this bunch of sections to the following effect: “When the issue raised by the Court is in substance whether the plaintiff's or defendant's story is true, it is possible that neither of the stories may be true. The question, then, arises which of the two alternative issues is the really material one. So the really material one is the first of the issues- is the plaintiff's story true?” If this rule is applied as the proper test to the facts of the present case the Court has before it two alternative stories: firstly, that the plaintiff had a reputation which has been damaged giving him a right to recover damages; but as against this the defendant claims privilege, fair comment, and justification by truth. Neither of these versions may ultimately be found to be true. In such a situation, it would clearly be the duty of the plaintiff to prove, in the first instance, that his story is true. 4. Another point which the Court below has missed is that the defence is substantially an argumentative traverse of the truth of the plaintiff's story and cannot be taken to be an admission of any of the plaint allegations, constituting defamation of the plaintiff's character. The only fact that may SCA/1253/2007 17/19 JUDGMENT be regarded as having been admitted is that the defendants are respectively the editor and publisher of the journal in which the impugned articles appeared. But it cannot be taken to have been admitted in the pleading that they constitute a libel on the plaintiff's character. In these circumstances the onus lies on the plaintiff affirmatively to establish his case, as set out in the first two issues; otherwise he must fail and in that event, it is open to the defendant to say: “ I need not prove the truth of my defence as the plaintiff has not proved this.” 5. It should therefore be borne in mind that the right to begin is not the same as the adducing of evidence in support of a party's case. There is a distinction between the two. It is open to the plaintiff to say that although he has the right to begin he may rest content with relying upon the averments made in the written statement and may say that he does not propose to adduce further evidence, but the plaintiff should make this statement before the defendant is called upon to adduce evidence. Unfortunately, the Court below has confused the issue and has called upon the defendant to open his case even before the plaintiff went into the box or testified to the truth SCA/1253/2007 18/19 JUDGMENT of his story. We are clearly of opinion that the order of the learned Subordinate Judge is erroneous and must be set aside." 8. The Bombay High Court in the case of Haran Bidi Suppliers & Anr. Vs. M/s V/M/ & Co. (supra) while considering Order 18 Rule 1 as held that what is provided in Order 18 Rule 1 is only an enabling provision entitling defendant of right to begin and the said provision cannot be interpreted to mean that the Court would be competent to direct the defendant to enter witness box before the plaintiff and lead evidence in support his case. 9. Considering the issues framed by the learned trial Court and facts and circumstances narrated herein above the impugned order passed by the learned trial Court allowing application Exh. 89 directing the defendant to enter the witness box first and lead evidence is in direct conflict with Rule 1 & 2 of Order 18 and the Evidence Act which cannot be sustained and requires to be quashed and set aside. SCA/1253/2007 19/19 JUDGMENT 9. For the reasons stated above, petition succeeds. The impugned order passed by the learned 4th Additional Senior Civil Judge, Valsad dated 20.9.2005 below Exh. 89 in Regular Civil Suit No. 179 of 1995 is hereby quashed and set aside and it is held that it will be plaintiff who has entered the witness box and lead evidence to prove his case. Rule is made absolute. There shall be no order as to cost. (M.R. SHAH, J.) Kaushik