Plaintiff must lead evidence first when the defendant do not admit to the facts pleaded by the plaintiff: High Court of Delhi

 IN THE HIGH COURT OF DELHI AT NEW DELHI RAJNISH GUPTA & ANR. Plaintiffs Date of Decision : 23rd February 2022 CS(OS) 332 2021 Through: Mr. Mohit Chaudhary Mr. Kunal Sachdeva and Ms. Anubha Surana MUKESH GARG Defendant Through: Mr. Amit Vohra Advocate. HON BLE MR. JUSTICE AMIT BANSAL JUDGMENT AMIT BANSAL J.VIA VIDEO CONFERENCING] I.A. No. 3026 2022The present application has been filed on behalf of applicant defendant under Order XVIII Rule 1 of the Code of Civil Procedure 1908seeking a direction that the non applicants plaintiffs be directed to lead the evidence in terms of Order XVIII Rule 1 of the CPC. Issue notice. Notice is accepted by the counsel appearing on behalf of the non applicants plaintiffs on advance notice. He further submits that he does not CS(OS) 332 2021 straightway. wish to file a reply to the said application and has argued the matter Accordingly arguments of both the counsels have been heard. On 14th February 2022 the following issues were framed in the case: i) Whether the suit is bad on account of misjoinder of parties ii) Whether the suit is bad on account of misjoinder of causes of iii) Whether the defendant has pledged any ancestral gold and diamond jewellery worth Rs.4 40 00 000 with the plaintiffs action OPD iv) Whether there is any delivery note dated 11th July 2018 in existence signed by the plaintiff No. 1 OPD v) Whether the plaintiffs are entitled for a recovery of Rs.4 00 00 000 along with interest against the defendant as prayed for OPP If so whether the plaintiffs are entitled for any interest if yes for what period and at what rate OPP vii) Relief. Taking into account that in most of the substantive issues the burden to prove is on the applicant defendant it was directed applicant defendant would lead the evidence. At the outset reference may be made to Order XVIII Rule 1 of the CPC as under: “1. Right to begin.—The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contents that CS(OS) 332 2021 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 counsel for the applicant defendant places reliance on Order XVIII Rule 1 of the CPC aforesaid to contend that it is the choice of the defendant to begin the evidence or not and if the defendant chooses not to begin the plaintiff has to begin his evidence first. It is further contended that the Court does not have the power to direct the defendant to lead the evidence first. In this regard reliance has been placed on the judgment of Co ordinate Benches of this Court in Om Prakash Vs. Amit Choudhary & Ors. 2019 DRJ 93 and Sabiha Sultana & Ors. Vs. Ahmad Aziz & Anr. 2017 SCC OnLine Del 10229. On the other hand it is contended on behalf of the counsel for the non applicants plaintiffs that in terms of Order XVIII Rule 1 of the CPC in the event that the defendant admits the facts alleged by the plaintiff and alleges additional facts on account on which plaintiff is not entitled to the reliefs claimed in the suit in such an event the defendant has to begin the evidence. In the present case admission has been made by the non applicant defendant of the material factum of the defendant receiving the sum of Rs.4 00 00 000 from the non applicants plaintiffs and which is noted in the order dated 27th January 2022 passed by the Court. Therefore in the facts and circumstances of the present case it is the non applicant defendant who should begin the evidence. Reliance is placed on Sections 102 and 103 of the Indian Evidence Act 1872. Reliance is also placed on the judgment dated 22nd August 2008 of the Division Bench of this Court in FAONo.44 2008 titled N.K. Tomar Vs. Viraj Impex Ltd. CS(OS) 332 2021 and judgment of the Co ordinate Bench of this Court in Achala Mohan Vs. Jayashree Singh MANU DE 0798 2020No.7360 2020 preferred whereagainst was dismissed on 16th November 2020]. I have heard the counsels for the parties. Let me first deal with the judgments cited on behalf of the parties. 11. Counsel for the applicant defendant relies upon paragraph 8 of the judgment in Sabiha Sultanawhich is set out below: In terms of the procedure stipulated in CPC and the aforesaid precedents it is clear that as a general rule the party which set up a claim must prove the burden cast upon it. The plaintiff has a right to begin and so he must because the burden of proof rests upon one who pleads. It is for the plaintiff to lead evidence first. It is only when the defendant admits to the facts pleaded by the plaintiff that the latter would be relieved of this burden but in the absence of any such admission asking the defendant to lead evidence first could well be disadvantageous to the defendant. Order 18 Rule 1 of CPC prescribes “right to begin” in recording of evidence wherein the plaintiff would lead evidence first but the defendant may be permitted to lead evidence if after having admitted to the facts pleaded by the plaintiff he so seeks to do. In the absence of these two qualifying circumstances the Court would not direct the defendant to lead evidence first.” In the paragraph quoted above it has been observed that as per Order XVIII Rule 1 of the CPC it is the general rule that the plaintiff must lead evidence first however when the defendant admits to the facts pleaded by the plaintiff the plaintiff could be relieved of such burden. Therefore given the facts and circumstances of the present case the judgment in Sabiha Sultana supra) does not come to the aid of the applicant defendant. CS(OS) 332 2021 12. The judgment in Sabiha Sultana was relied upon by a Coordinate Bench of this Court in Om Prakashand it was observed as under in paragraph 15 of the said judgment: “15. In the facts of the present case Order XVIII Rule 1 is not applicable. The defendants have not sought to exercise the right to begin which in view of the authorities above is a choice for him to make and not for the plaintiff to force upon him. In any event the substantive condition that the facts alleged by the plaintiff must be admitted by the defendants is also not satisfied. Merely because the execution of the Collaboration Agreement is admitted does not imply that the defendants have admitted the facts alleged by the plaintiff. In contractual disputes it is often the case perhaps in a majority of cases that the execution of the contract is admitted by the defendant but other facts establishing the plaintiff s claims are not. In the present case for example the quantum of damages assessed by the plaintiff has been expressly and unequivocally disputed in the written statement. It is settled law that pleadings are to be read as a whole and admissions cannot be considered in In the aforesaid judgment in Om Prakashthis Court came to a conclusion that merely because the defendants had admitted to a collaboration agreement would not mean that defendants had admitted the other facts alleged in the plaint. Notably the plaintiff had claimed damages in the aforesaid suit which was denied by the defendants in its written statement. Accordingly in the facts of that case the Court upheld the order of the Trial Court dismissing the application of the plaintiff seeking a direction to the defendants to begin the evidence. 14. The aforesaid judgment in Om Prakashdoes not advance the case of the applicant defendant in the present case as in the present case no damages are being claimed by the plaintiff. The suit is based on recovery of CS(OS) 332 2021 amounts paid by the non applicants plaintiffs to the applicant defendant for the purchase of property and the receipt of consideration has not been denied by the applicant defendant. 15. On the other hand the non applicants plaintiffs have placed reliance on the judgment of this Court in N.K. Tomarand Om Prakash this Court came to the following conclusion: “19. Thus the consistent view has been that if the Defendant sets up a case the proving of which would completely decide the issues which have been raised in the suit itself then the Defendant under Order XVIII Rule 1 CPC can be directed to lead evidence first. CS(OS) 332 2021 25. The ld. counsel for the Defendant submits that unless and until the Defendant voluntarily opts for leading evidence first the Court would not have the power to direct so. This would not be in accordance with law inasmuch as the Court has the power to curtail the trial of any suit at the time of framing of issues. The manner in which the issues have been framed in the present case shows that insofar as the issue no. 1 and issue no. 2 the onus has been cast clearly on the Defendant. If the Defendant is able to prove or not prove these issues the decision in the suit would get quite expedited. 26. Under these circumstances it is not necessary that in every suit unless and until the Defendant opts the Court cannot direct the Defendant to lead evidence first. The question as to whether who should lead evidence first would have to be decided by the Court after ascertaining the respective stands of the parties and after seeing as to what are the actual issues which arise for adjudication in the suit itself.” 17. The non applicants plaintiffs have filed the present suit for recovery of Rs.4 00 00 000 along with interest against applicant defendant premised on the fact that a loan of Rs.4 00 00 000 was given by the non applicants plaintiffs to the applicant defendant and the applicant defendant failed to return the said amount. The factum of receipt of the aforesaid amount has been admitted by the applicant defendant in its written statement. However the applicant defendant has pleaded additional facts in the written statement that the said amount of Rs.4 00 00 000 was in respect of old ancestral jewellery transactions which were given by the defendant to the plaintiff No.1. CS(OS) 332 2021 18. Based on the aforesaid pleadings issues were framed in the suit on 14th February 2022 and as can be seen from the issues the onus of proving issues No.(i) towere on the applicant defendant. The only issues which are to be proved by the non applicants plaintiffs is whether the non applicants plaintiffs are entitled recovery of the amount of Rs.4 00 00 000 along with interest. The substantive issues in the present suit would be issues No.(iii) and which are completely based on the additional facts pleaded by the applicant defendant in its written statement and therefore the onus of proving the same is on the applicant defendant. In the light of the dictas of this Court in N.K. Tomar and Achala Mohan there is no merit in the submission of the applicant defendant that unless the applicant defendant voluntarily opted for leading evidence in the first instance the Court cannot direct the applicant defendant to do so. In Achala Mohan it has been observed that the consistent view of the Courts has been that if the defendant sets up a case the proving of which would completely decide the issues which have been raised in the suit itself then the defendant under Order XVIII Rule 1 CPC can be directed to lead evidence first. I concur with the aforesaid observations of this Court in Achala Mohan 332 2021 does not mean that in an appropriate case based on the facts and circumstances of the case and the issues framed therein the Court cannot direct the defendant to lead evidence first. 21. Therefore in the facts and circumstances of this case it was correctly observed in the order dated 14th February 2022 that the evidence would be led at first by the applicant defendant. In light of the aforesaid this Court finds no merit in the application and the same is dismissed. CS(OS) 332 2021 FEBRUARY 23 2022 Sakshi R. dk 23. Parties are permitted to file hard copies of the entire record of the suit for the purpose of recording of evidence. AMIT BANSAL J CS(OS) 332 2021 

Summary: It is the general rule that the plaintiff must lead evidence first, however, when the defendant admits to the facts pleaded by the plaintiff, the plaintiff could be relieved of such burden as per Order XVIII Rule 1 of the CPC. It is for the plaintiff to lead evidence first, It is only when the defendant admits to the facts pleaded by the plaintiff that the latter would be relieved of this burden but in the absence of any such admission, asking the defendant to lead evidence first could well be disadvantageous to the defendant and the same was upheld by High Court of Delhi through the learned bench led by HON’BLE MR. JUSTICE AMIT BANSAL in the case of RAJNISH GUPTA &amp; ANR. vs. MUKESH GARG [CS(OS) 332/2021] on 23.02.2022. The facts of the case are that the burden to prove is on the applicant/defendant and it was directed that the applicant/defendant would lead the evidence. Therefore, it was stated by the defendant that it is a choice of the defendant to begin the evidence or not and if the defendant chooses not to begin, then in that case plaintiff has to begin his evidence first. The present application has been filed on behalf of the applicant/defendant under Order XVIII Rule 1 of the Code of Civil Procedure, 1908 seeking a direction that the non-applicants/plaintiffs be directed to lead the evidence in terms of Order XVIII Rule 1 of the CPC. The applicant’s counsel submitted that according to Order XVIII Rule 1 of the CPC, it is the choice of the defendant to begin the evidence or not and if the defendant chooses not to begin, the plaintiff has to begin his evidence first. It was further contended that the Court does not have the power to direct the defendant to lead the evidence first. The defendant’s counsel contended that in the event that the defendant admits the facts alleged by the plaintiff and alleges additional facts on account on which plaintiff is not entitled to the reliefs claimed in the suit, in such an event, the defendant has to begin the evidence. In the facts and circumstances of this case, the court held that the evidence would be led, at first, by the applicant/defendant because when the defendant admits to the facts pleaded by the plaintiff, the plaintiff could be relieved of such burden. The Court observed that “plaintiff has a right to begin and so he must because the burden of proof rests upon one who pleads. It is for the plaintiff to lead evidence first. It is only when the defendant admits to the facts pleaded by the plaintiff that the latter would be relieved of this burden, but in the absence of any such admission, asking the defendant to lead evidence first could well be disadvantageous to the defendant. As per Order XVIII Rule 1 of the CPC, it is the general rule that the plaintiff must lead evidence first, however, when the defendant admits to the facts pleaded by the plaintiff, the plaintiff could be relieved of such burden.”