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2024 Supreme(SC) 1210
SUPREME COURT OF INDIA
J.B. Pardiwala, R. Mahadevan, JJ.
Jami Venkata Suryaprabha & Anr. – Petitioners
VERSUS
Tarini Prasad Nayak & Ors. – Respondents
Special Leave Petition (Civil) No. 29045 of 2024
Decided On : 09-12-2024
For the Petitioner(s): Mrs. Prabhati Nayak, Adv. Mr. Umakant Misra, Adv. Mr. Debabrata Dash, Adv. Ms. Apoorva Sharma, Adv. Ms. Shivangi Gupta, Adv. Mr. Niranjan Sahu, AOR
IMPORTANT POINTS
(1) Hearing of suit is only a part of trial of suit – Determination of question as to which party has right to begin is an integral part of hearing itself.
(2) Burden of proof – Averments made in written statement sought to be relied upon by plaintiff does not ipso facto be construed to be admission of materials facts in alleged plaint.
Headnote:
(A) Civil Procedure Code, 1908 – Order XVIII Rule 1 – Production of evidence – Right to begin – Order XVIII of CPC in terms speaks of ‘hearing’ of suit and not trial of suit – Court is concerned with trial of suit from the time when it is instituted – Hearing of suit is only a part of trial of suit – Determination of question as to which party has right to begin is an integral part of hearing itself – Order XVIII Rule 1 indeed provides for plaintiff's right to begin evidence but not court's obligation to ask plaintiffs to begin first – There is no impediment for court to call upon either party to lead evidence first, depending upon facts and circumstances of case and nature of issues framed – Neither party can insist that other one should be asked to lead it first – It all depends upon what Court deems proper in the circumstances – Where it finds that defendant's plea strikes of root of case, there would be no hitch in asking him/her to prove such plea first which can lead to disposal of case – There can be no watertight compartmentalisation in matters of justice and all rules of procedure are designed and directed to achieve and secure ends of justice. (Paras 17 and 18)
(B) Indian Evidence Act, 1872 – Section 102 – Burden of proof – Under Section 102 of Evidence Act, burden of proof rests on party who would fail if no evidence at all were given on either side – Where defendant admits facts alleged by plaintiff but contends that plaintiff is not entitled to any part of relief which he seeks, it is defendant who gets right to begin – Averments made in written statement sought to be relied upon by plaintiff does not ipso facto be construed to be admission of materials facts in alleged plaint. (Paras 14 and 16)
Facts of the case:
Present petition arises from order passed by High Court of Orissa in CMP No.1019 of 2024 (original jurisdiction case) dated 23rd September, 2024 by which petition filed by petitioners seeking to challenge the order passed by Civil Judge (Senior Division), came to be rejected thereby affirming order passed by Civil Judge rejecting application filed by petitioners herein in capacity of being a plaintiff under Order XVIII Rule 1 of Civil Procedure Code, 1908.
Findings of Court:
In such circumstances, no reason to interfere with impugned order passed by the High Court.
Result : SLP disposed of with observations.
ORDER :
1. This petition arises from the order passed by the High Court of Orissa in CMP No.1019 of 2024 (original jurisdiction case) dated 23rd September, 2024 by which the petition filed by the petitioners herein seeking to challenge the order passed by the Civil Judge (Senior Division), Paralakhemundi came to be rejected thereby affirming the order passed by the Civil Judge rejecting the application filed by the petitioners herein in the capacity of being a plaintiff under Order XVIII Rule 1 of the Civil Procedure Code, 1908.
2. The petitioners herein are the original plaintiffs and the respondents herein are the original defendants.
3. The petitioners have instituted a suit for specific performance of contract based on an agreement of sale dated 1st September, 2019, said to have been executed by the respondents(defendants) in their favour.
4. The respondents herein filed their written statement stating in para 6 thereof as under:-
“6) That the averments in Para 6 of the Plaint that defendants though received the said letter dated 25/11/2019 sent by ordinary post, and knowing well in advance the contents of the Redg. Letter and the letter sent by courier they refused to receive are all dales and concocted stories of the plaintiff only to make a cause of action for the present proceedings. However when Plaintiffs and others tried to spread that the sale of the suit property has been finalized and Plaintiffs going to purchase it came to Knowledge of Defendants, they preferred to inform in writing about the cancelation of the said sham sale agreement dated 01/09/2019 about which well appraised before to Jami Polichetty and his son as aforementioned. As such the averments in Para 6 of the Plaint that but soon all the Defendants in response to said letter of Plaintiffs sent a joint letter by Redg post A/D to the Plaintiffs are is conceived and placed with a malafide intension and accordingly not correct. As the Defendants with ulterior motive began to insist creating gossips about sale agreement and sale of the property, the Defendants preferred to give the letter in writing to the Plaintiffs Instead of acting in good faith as initially the matter arose but could not take shape of actual agreement as placed above and coming forward to take refund of the token amount kept with Defendants, the Plaintiffs preferred to play foul with it”
5. In view of the specific stance of the defendants in their written statement referred to above, the petitioners herein as plaintiffs preferred an application before the trial court under Order XVIII Rule 1 of the Civil Procedure Code, 1908 (for short the “CPC”) with a prayer that as the defendants are not disputing the agreement of sale, the defendant should be asked to begin to lead oral evidence.
6. The trial court rejected the application.
7. The petitioners herein being dissatisfied with the order passed by the trial court, rejecting such application invoked the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India. The High Court also declined to interfere.
8. In such circumstances, the petitioners are here before this court with the present petition.
9. We have heard Mr. Niranjan Sahu, the learned counsel appearing for the petitioners.
10. Order XVIII Rule 1 of the CPC reads thus:-
“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.”
11. As a general rule, according to the procedural law, no doubt it is the plaintiff who has to prove his claim by positive proof, for the court has to see whether there is a proof of claim before it needs to enquire, as to the truth or otherwise of the defence. It is open to the plaintiff to say that although he has the right to begin, yet he may rest content with relying up
