The trial court must consider the presence of admissions in the written statement or counter claim before placing the burden of leading evidence on the defendants.

JUDGMENT

Tushar Rao Gedela, J. (Oral)

[The proceeding has been conducted through Hybrid mode]

1. The petitioners challenge the order dated 22.12.2022 passed in Civ DJ No. 102/2018 titled "PNB Housing Finance Ltd vs. Meenakshi Kumar & Anr." whereby the learned Trial Court has directed the petitioners/defendants to lead the evidence first in exercise of the jurisdiction under Order XVIII Rule 1 of CPC, 1908.

2. Mr. Shikhil Suri, learned counsel for the petitioners/defendants submits that there is a stark violation of the procedure and judicial impropriety committed by the learned Trial Court vide the impugned order. Mr. Suri submits that the rationale upon which Rule 1 of Order XVIII CPC, 1908 is rested, is the fact that there ought to be an admission on the part of the party before any such onus is placed upon the party, firstly.

3. Learned counsel draws attention of this Court to the impugned order to submit that the impugned order is conspicuous by the absence of even an iota of reference to the pleadings filed on behalf of the petitioners/defendants, either in the written statement or in the counter claim, to come to a prima facie finding that there has been an admission based whereon a direction under Order XVIII Rule 1 CPC could have been issued to the petitioners/defendants.

4. Learned counsel also refers to judgment of Coordinate Bench of this Court in `Sabiha Sultana & Ors. vs. Ahmd Aziz', 2017 SCC OnLine Del 10229 to submit that ordinarily the recording of the evidence lies with the plaintiff in a suit, and its only in circumstances covered under Order XVIII Rule 1 CPC that too on the finding of the facts, that the burden may be placed upon the defendant to lead evidence first.

5. Per Contra, Mr. Ajay Kohli, learned counsel appearing on behalf of the respondent/plaintiff submits that though the learned Trial Court in the impugned order has not specifically referred to any admission, however, it was satisfied after examining the contents of the written statement as well as the counter claim that admissions were in fact of such nature that the onus of recording would place firstly on the petitioners/defendants. Learned counsel also submits that the reasons stated in the impugned order are in accordance with law and there is neither any judicial impropriety nor material irregularity committed by the learned Trial Court and this Court ought not to interfere with the impugned order in exercise supervisory jurisdiction.

6. This Court has heard the arguments urged on behalf of both the parties as well perused the impugned order.

7. A bare perusal of the impugned order brings to fore that the learned Trial Court has placed the burden upon the petitioners/defendants on the basis that majority of the issues which are to be proved are that which are on the petitioners/defendants and therefore, concluded that it would be appropriate to direct the petitioners/defendants to lead evidence first.

8. This Court has also observed that the impugned order is conspicuous by the absence of any reference to any admission by the petitioners/defendants either in the written statement or counter claim to come to a prima facie finding that there are admissions which require petitioners/defendants to lead evidence first.

9. Learned Trial Court has misdirected itself and committed a material irregularity in basing its impugned order on the number of issues which are placed upon the petitioners/defendants to discharge.

10. The reasoning is contrary to the provisions of Code of Civil Procedure as also the judgment rendered by the Coordinate Bench of this Court in Sabiha Sultana (supra) case. Insofar as the judgments relied upon by the respondent/plaintiff as submitted by Mr. Kohli, is concerned, the same are yet to be tested by the learned Trial Court as the same were never placed before the learned Trial Court.

11. In that view of the matter, this Court is of the considered opinion that it would be in the interest of justice as also keepin