JUDGMENT - D.D. SINHA, J.:---Heard Shri Lokhande, learned Advocate, holding for Mr. Rohit Deo, Counsel for the applicant. None appears for the respondent.

2. The applicant has assailed the order, dated 8-8-1995, passed below Exh. 23 in Regular Civil Suit No. 850 of 1993, by the Third Joint Civil Judge (Junior Division), Nagpur, whereby the application moved by the plaintiff under Order 18, Civil Procedure Code, seeking a direction to the defendant to begin evidence first came to be rejected.

3. The learned Counsel for the applicant states that the applicant is the plaintiff and has filed a Regular Civil Suit for recovery of money, i.e. amount of Rs. 24,608-91. It is the case of the plaintiff that the present respondent (defendant), vide agreement, dated 15-3-1992, accepted that an amount of Rs. 42,506-91 was due and payable by him and, in fact, pursuant to the said agreement, also paid an amount of Rs. 21,000-00. The plaintiff did not, however, receive the balance amount and hence was constrained to file the civil suit.

4. The Counsel for the applicant further contended that the defendant in his written statement has admitted that an agreement, dated 15-3-1992, was executed, and also admitted that two installments were paid pursuant to the said agreement. The defendant, however, alleges undue influence and coercion and, therefore, called in question the validity of the agreement. The learned Counsel contended that since the defendant had alleged undue influence and coercion, the burden of proving the same lies on him, particularly when the defendant has admitted that the amount claimed by the plaintiff was, indeed, due and payable by the defendant in view of Issue Nos. 3 and 11 and, therefore, the plaintiff was justified in law to seek a direction from the Court to the defendant to begin with the evidence.

5. The learned Counsel for the applicant contended that the trial Court, without properly taking into consideration the provisions of Order 18, Rules 1 and 2 of the Civil Procedure Code, wrongly rejected the application of the applicant below Exh. 23 merely on the ground that the burden of establishing the agreement and entitlement to recover the amount on the basis of alleged agreement lies on plaintiff. It is submitted that the said order is, therefore, not sustainable in law.

6. In order to substantiate this contention, reliance is placed on the judgment of the Gujarat High Court in (M/s. Keshavlal Drlabhasinbha's Firm and another v. Shri Jalaram Pulse Mills)1, A.I.R. 1995 Gujarat 166.

7. Considered the contentions canvassed by the learned Counsel. Perused the provisions of Order 18, Rules 1 and 2, Civil Procedure Code, as well as the judgment cited by the learned Counsel. It would be appropriate to consider the purport of Order 18, Rules 1 and 2, Civil Procedure Code, before adjudicating on the merits of the matter. Order 18 deals with hearing of suits and examination of witnesses. Rule 1 deals with a right to begin, and contemplates that 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 and in such situation, the defendant has a right to begin. The plain reading of Rule 1 would show that the plaintiff, undoubtedly, has a right to adduce evidence first in the suit. However, in view of certain contingencies mentioned in Rule 1, the defendant gets right to begin, and is entitled to adduce evidence first in the suit. This is, undoubtedly, an enabling provision entitling the defendant of right to begin. However, nothing in this provision confers any power on the Court under this rule to direct defendant to adduce evidence first in the suit if the defendant himself has not claimed such right in view of the contingencies mentioned in Rule 1.

8. It needs to be borne in mind that when the defendant denies the material facts

Click Here to Read the rest of this document