CRP 195/2009 BEFORE THE HON’BLE MR. JUSTICE T. VAIPHEI Challenge in this revision is to the order dated 30-4-2009 passed by the learned Munsiff No. 1/Hailakandi in Title Suit No. 127 of 2006 rejecting the applicatio n of the petitioner for adducing his evidence before the respondents/defendants to establish his case. The facts material for disposal of this revision may be recorded at the outset. The case of the petitioner is that he instituted Title Suit No. 53 of 20 05 before the learned Civil Judge, Senior Division, Hailakandi against the respo ndents for a decree of declaration, but due to pecuniary reason, the suit was su bsequently transferred to the learned Munsiff No. 1/Hailakandi with the re-numbe red Title Suit No. 127 of 2006, The respondents, in turn, filed their written st atement denying the allegations made against them in the plaint and also filed a counter-claim disputing the case of the petitioner and claiming a decree for de claration that the Deed No. 417 and 418 executed by the petitioner in their favo r and registered by the District Registrar in R.A. No. 4 of 2002 and No. 5 of 20 02 are valid, legal and enforceable. The petitioner thereafter filed his written statement against the counter-claim of the respondents. One thing led to anothe r in the proceedings before the trial court, with which we are not concerned. In the meantime, the record in respect of C.R. Case No. 694 of 2007 called for by the trial court at the behest of the petitioner was not received till 5-2-2009. However, even before the receipt of the C.R. Case No. 694 of 2007, D.W. No. 1,2 and 3 filed their respective examinations-in-chief by affidavits. The trial cour t passed the order dated 5-2-2009 issuing a reminder about the case record calle d for and directing the cross-examination of the three D.Ws. on 7-3-2009. Accord ing to the petitioner, the trial court did not take effective steps for the prod uction of the said case record, which is vital for his evidence. Aggrieved by th e procedure so adopted by the trial court, he moved an application bearing No. 2 53/18 under Order XVIII read with Section 151 CPC praying for the right to begin and adduce his evidence before the cross-examination of DWs. This application w as, however, rejected by the trial court by the impugned order whereupon this re vision petition came to be filed. For better appreciation of the controversy, I will straightaway refer to the im pugned order, which is in the following terms: 30-4-09: Plaintiff is represented. Defendant counter claimant is present with o ne D.W. Plaintiff moved a petition 253 u/o XVIII read with 151 CPC praying to al low plaintiff to adduce evidence before defendants showing that plaintiff has ri ght to begin to adduce his evidence but when counter claim filed by defendant th e burden shifted to said counter claimant treating such prayer which is rejecte d. Heard both sides. Generally plaintiff has right to begin to adduce his eviden ce but when counter claim filed by defendant the burden shifted to said counter claimant treating such prayer as valid plaint where rule of plaint shall proved. Hence I don’t find any reason of plaintiff’s prayer which is rejected. Seen the petition 257 moved by plaintiff praying time for cross of D.W’s (counter claim ) showing that after disposing the petition 253 court should proceed. Heard, the prayer is allowed in the ends of justice with cost of Rs. 100/- to defendants/c ounter-claimant. Call for Record made by plaintiff not come. Issue reminders. Pl aintiff to take step. Seen the petition 246 moved by counter claimant praying ti me for D.W. showing cause. Heard & allowed. Fix 30-5-09 for Records. Cross of D.W’s (Counter claimant) Sd/- Illegible. The first contention of Mr. M.H.Rajbarbhuiya, the learned counsel for th e petitioner, is that the trial court has completely misread and misunderstood t he provision of Order XVIII, Rule 1, CPC, which in clear terms provides that whe re the defendant admits the facts alleged by the plaintiff but contends that the plaintiff is not entitled to any part of the relief which he seeks, the defenda nt gets the right to begin. In the instant case, according to the learned counse l, inasmuch as the respondents/defendants did not admit the facts alleged by the petitioner in the plaint, the trial court has exceeded its jurisdiction in allo wing the respondents the right to begin, which is in flagrant violation of Order XVIII, Rule 1, CPC. He next contends that the instant case is one in which the petitioner seeks a particular relief, which is disputed by the respondents, but the trial court ought to have realized that the burden of proof squarely lies up on the petitioner to his establish his case by adducing his evidence first; it has thus improperly exercised its jurisdiction. On the other hand, it is the sub mission of Mr. A.M. Borbhuiya, the learned counsel for the respondents, that the re is no infirmity in the impugned order passed by the trial court which merely recognized the fact that as the respondents also filed their counter-claim again st the petitioner, they also stood in the nature of plaintiffs in the suit. He m aintains that as the respondents are also seeking reliefs against the petitioner in the counter-claim, the burden of proving their counter-claim equally also li es upon them and it is, therefore, not obligatory upon the trial court to ask th e petitioner to begin first. It is his submission that Order XVIII, Rule CPC can not be pressed into service as an inflexible rule when there is a suit filed by the plaintiff and a counter-claim filed by the defendant. Contending that the im pugned order does not suffer from any improper exercise of jurisdiction, the lea rned counsel prays for dismissal of the revision petition. Order XVIII, Rule, CPC deals with the right to begin or the privilege of opening the case and reads thus: Right to begin.? The plaintiff has the right to begin unless the defend ant 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. The general rule is that the party on whom the onus probandi (burden of proof)lies should begin. What the provision says, in simple terms, is that the p laintiff has the right to be begin unless defendant admitted all the material al legations in the plaint, and contends that either in point of law or some additi onal fact, that the plaintiff is not entitled to relief claimed. The Code of Civ il Procedure is concerned with procedural laws, and is something designed to fac ilitate justice and further its ends, not a penal enactment for punishment and p enalties; not a thing designed to trip people up. Too technical construction of section that leaves no room for elasticity of interpretation should therefore be guarded against. Our laws of procedure are grounded on a principle of natural j ustice. (Sangram Singh v. Election Tribunal, AIR 1955 SC 425). In other words, r ules of procedure are the handmaids of justice and not its mistress. In the inst ant case, we are dealing with the suit filed by the petitioner and the counter-c laim filed by the respondent. Order VIII, Rule 6A to Rule 6G, CPC deal with coun ter-claim, which were inserted in the Code for the first time in 1976 by Code of Civil Procedure (Amendment) Act 104 of 1976, which came into force on 1-2-1977. Before Rule 6A to 6G were inserted by the 1976 Amendment Act, it was held by th e Apex Court that there is nothing in law which precludes a court from treating a counter-claim as a plaint in a cross-suit. Rules 6A to 6G have been inserted m aking statutory provisions for admissibility of counter-claim as such by the def endant i.e. a counter-claim made by the defendant to enforce an independent righ t unconnected with the claim made in the plaint and not intended to be a defense to the claim in plaint, making detailed provisions thereof. A counter-claim is substantially a cross-action, not merely a defense to the plaintiff’s claim. The rights granted to the defendant to set up counter-claim are not only limited fo r the claim put forth by the plaintiff in a suit itself, and even the cause of a ction need be the same; there is nothing in Order VIII, Rule 6A restricting the nature of relief which the defendant might seek in the counter-claim. In Surges an & Co. Pvt. Ltd. V. Hindustan Machine Tools Ltd, AIR 2004 AP 428, it has been held that a counter-claim has to be treated as a plaint and shall contain all th e features of a regular suit, and is governed by rules applicable to the plaints . In Desh Bandhu v. Harish Bindal, 2001 AIHC 712, the Delhi High Court has an oc casion to consider the scope of Order XVIII, Rule 1 CPC and came to the followin g conclusions, in my judgment, rightly so: 7. Petitioner’s case is no better on the other issue and suffers from a fal lacy on the face of it. Order 18 Rule indeed provides for plaintiff’s right to b egin the evidence but not Court’s obligation to ask the plaintiff to begin first . There is no impediment for the court to call upon either party to lead evidenc e first, depending upon the facts and circumstances of the case and the nature o f the issues framed. Neither party can insist that the other one should be asked to lead it first. It all depends upon what the Court deems proper in the circum stances. Where it finds that the defendant’s plea strikes at the roots of the ca se, there would be no hitch in asking him/her to prove such plea first which can lead to disposal of the case. There can be no water-tight compartmentalization in matters of justice and all rules of procedure are designed and directed to ac hieve and secure ends of justice. (Underlined for emphasis) In the instant case, the suit filed by the petitioner is for declarations that t he orders dated 29-11-04 passed the District Registrar, Hailakandi in R.A. No. 4 /2002 and R.A. No. 5/2002 are illegal and collusive and that the suit 2nd schedu le documents registered on 27-12-04, namely deeds No. 417 and 418 in pursuance o f the said orders dated 29-11-04 of the District Registrar, Hailakandi are collu sive and void ab initio and are liable to be cancelled. On the other hand, the r espondents, in their counter-claim, are seeking declarations that the same deeds are valid and enforceable and that the deed Nos 1039 and 1040 executed the peti tioner in favor of the defendant No. 10 are illegal, collusive and void ab initi o and are, therefore, liable to be cancelled. There is no doubt that the dispute d deeds upon which claims and counter-claims are made by both the parties are in respect of the same plots of land. The allegations of the respondents in thei r counter-claim, among others, are that the petitioner in the year 1999 had agre ed to sell the 2nd scheduled documents land, was paid by them a sum of Rs. 17,0 00/- as an advance on 3-11-1999 followed by another payment of Rs. 15,000/- and final payment of Rs. 20,000/- on 9-4-01 and that the sale deeds executed by him in their favor was presented for registration before the Sub-Registrar, Hailakan di on 18-7-2001, but he refused to admit the execution thereof before the Sub-Re gistrar and that he had instead sold the same plots to the defendant No. 10 in 2 001. In my opinion, the plea taken by the respondents in their counter-claim str ikes at the root of both the cases projected by both the parties in the suit and the counter-claim. The trial court did not, therefore, improperly exercise its jurisdiction in allowing the respondents to adduce their evidence earlier than t he petitioner. The result of the foregoing discussion is that there is no merit in this revisio n petition. The trial court shall now proceed with the trial of the suit in acco rdance with the impugned procedure adopted by it and dispose of the suit and the counter-claim without any loss of time. Resultantly, the interim order passed b y this Court also stands vacated. No costs. Transmit the L.C. record forthwith.