Delhi High Court Micromax Informatics Ltd vs Vijay Jain & Ors on 13 December, 2017 $~25 * + FAO(OS) 310/2017 Date of Decision: 13th December, 2017 MICROMAX INFORMATICS LTD ..... Appellant Through: Mr. Jayant Mehta with Ms. Snigdha Sharma, Ms. Ritwik Sneha and Mr. Shaurya Kuthiala, Advs. versus VIJAY JAIN & ORS ..... Respondent Through: Mr. C.M. Lall, Sr. Adv. with Ms. Archana Sahadeva, Mr. Nikhil Lal and Mr. R. Behl, Advs. HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE C.HARI SHANKAR JUDGMENT (ORAL) GITA MITTAL, ACTING CHIEF JUSTICE CM Nos.4502223/2017 (for exemptions) Allowed, subject to all just exceptions. FAO(OS) 310/2017 Page 1 of 9 CMs stand disposed of. FAO(OS) No.310/2017 1. The appellant before us (defendant in suit) assails the order dated 15th November, 2017 passed in CS(OS) No.1831/2015 & CC No.102/2015 whereby the ld. Single Judge has directed both the parties to the suit to file their evidences by way of affidavits simultaneously within a further period of four weeks therefrom. 2. The primary ground of challenge on behalf of the appellant is that the filing of evidence by way of affidavits should first begin with the respondents/plaintiffs and therefore, the appellant could not have been called upon to file its evidence prior to the closure of the evidence of the respondents herein. The appellant has relied upon the provisions of Order XVIII Rule 1 & 2 of the Code of Civil Procedure which 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 relief 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. FAO(OS) 310/2017 Page 2 of 9 (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 he concludes the oral arguments, if any, submit if the Court so permit 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 grand such adjournment. (3D) The Court shall fix such timelimits for the oral arguments by either of the parties in a case, as it thinks fit." (Emphasis supplied) 3. It is submitted by Mr. Mehta that so far as hearing of the suit and the examination of the witnesses are concerned, the same have to be abide by Order XVIII Rule 1 and 2 of CPC which mandates that "the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in FAO(OS) 310/2017 Page 3 of 9 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 seems, in which case the defendant has the right to begin. " Mr. Mehta would submit that it is not the respondents' case before us that the provisions of Rule 1 of Order XVIII, CPC are satisfied. 4. So far as statement and production of evidence is concerned, Mr. Mehta contends that Rule 2 of Order XVIII categorically states that "on the day fixed for the hearing of the suit or on