Haran Bidi Suppliers & another vs V. M. & Co. , through Ambubhai s/o Jivrajbhai Seth

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2000 Supreme(Bom) 636

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
A.M. Khanwilkar, J.
Haran Bidi Suppliers another.... Applicants.
Versus
V.M. Co., through Ambubhai s/o Jivrajbhai Seth .... Non-applicant.
Civil Revision Application No. 351 of 1996, decided on 17-8-2000.
Advocates appeared :
Anand Parchure and S. Deo, for the applicants.
S.D. Sirpurkar, for the non-applicant.

Headnote:Section 115, Order XVIII, Rule 1 Evidence act, 1872, Section 101 Burden to prove 10 issues out of 14 lying on defendant-Direction of District Judge defendant to enter first in witness box-As per the enabling provision under Order XVIII, Rule 1, CPC court can ask any party to begin first-But plaintiff to be called first with evidence-Defendant to enter after wards-Accordingly order is quashed.- The only reason indicated in the said order is that burden is cast on the plaintiff to prove only four issues out of total 14 issues and, therefore, the defendants have been directed to enter the witness-box. According to the non- applicant/plaintiff, the said order was in terms of Order XVIII, Rule 1. It would appear that it is only an enabling provision entitling the defendant of right to begin, this provision cannot be interpreted to mean that the Court would be competent to direct the defendant to enter the witness-box before the plaintiff and lead evidence in support of its case. In the circumstances, the impugned order passed by the trial Court cannot be sustained in law. The trial Court is directed to proceed with the trial in accordance with law and dispose of the suit, preferably within a period of six months from the receipt of this order.

JUDGMENT - A.M. KHANWILKAR, J.:---Heard both sides. By consent revision application heard finally.

Only question involved in this revision application is whether the trial Court was right in directing the defendants to enter the witness-box in the first instance, by the impugned order dated 28th February, 1996. The order is very short which reads thus :

"Heard Shri Hundra for defendants, Shri Bhadu Pote for plaintiff.

There are about 14 issues. Only Issue No. 4 casts burden on the plaintiff. It is the case of the defendant in view of certain arrangements they are utilizing the trade mark of the plaintiff. Considering the onus, I direct the defendants to enter in the witness box and plaintiff would be rebutting.

Application is allowed."

The only reason indicated in the said order is that burden is cast on the plaintiff to prove only four issues out of total 14 issues and, therefore, the defendants have been directed to enter the witness-box. According to the non-applicant/plaintiff, the said order was in terms of Order 18, Rule 1. Order 18, Rule 1 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."

On the plain language of the said provision, it would appear that it is only an enabling provision entitling the defendant of right to begin. In my view, this provision cannot to interpreted to mean that the Court would be competent to direct the defendant to enter the witness-box before the plaintiff and lead evidence in support of its case. In the circumstances, the impugned order passed by the trial Court cannot be sustained in law.

2. In the circumstances, revision application is allowed. The order passed by the Second Additional District Judge, Gondia on 28th February, 1996 below Ex. 51 in Special Civil Suit No. 1 of 1986 is set aside. The trial Court is directed to proceed with the trial in accordance with law and dispose of the suit, preferably within a period of six months from the receipt of this order.

In view of the order passed by this Court in this revision application, no further orders are necessary on Civil Application No. 693 of 1996.

Revision application allowed.

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