Defendants who support the plaintiff's case should lead evidence first in point of time before the actual contestant of the suit, and the court has a duty to guide the trial and point out the legal position to the parties.

K. P. MOHAPATRA, J.

( 1 ) THIS revision is directed against the order passed by the learned Additional Munsif, Kendrapara, refusing the petitioners (defendants 2 to 4) to adduce evidence in Title Suit No. 194 of 1978.

( 2 ) OPPOSITE parties 2 to 6 (Plaintiffs) instituted the suit for setting aside the sale deed in respect of the suit land executed by petitioner No. 1 in favour of opposite party No. 1 (defendant No. 1) on the ground that the sale deed was obtained by the latter by fraud and misrepresentation without payment of consideration to the former, an illiterate and purdanashin lady. The petitioners, in their written statement, supported the case of opposite parties 2 to 6, which makes opposite parties 2 to 6 being plaintiffs and the petitioners being defendants sail in the same boat. Opposite parties 2 to 6 closed their evidence by examining witnesses on 24-7-1984. The defendants were to commence their evidence on 25-7-1984. On that day opposite party No. 1, as well as, the petitioners filed their list of witnesses and were present in court. Opposite party No. 1 commenced his evidence which was closed on 1-8-1984. On that day the petitioners filed a petition to allow them to examine their witnesses to which there was opposition by opposite party No. 1. The matter was heard by the learned Additional Munsif who by the impugned order held that the petitioners should have led evidence before commencement of evidence of opposite party No. 1, because, they supported the case of opposite parties 2 to 6. In case they were permitted to lead evidence after close of evidence of opposite party No. 1, the latter would be seriously prejudiced in his defence, because. whatever materials he had obtained in his support by cross-examining the witnesses of opposite parties 2 to 6 and by examining the own witnesses would be, destroyed.

( 3 ) THE learned counsel appearing for the petitioners urged that the learned Additional Munsif should have called upon the petitioners to adduce evidence before he permitted opposite party No. 1 to lead his evidence. For the above reason it was not possible on the part of the petitioners to adduce evidence prior to the leading of evidence by opposite party No. 1.

( 4 ) ACCORDING to the scheme of Rule 2, Order 18 of the Code of Civil Procedure ('code' for short), on the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. Thereafter the other party shall state his case and produce his evidence, if any, and may then address the Court generally on the whole case. A further opportunity is given to the party beginning the case to reply generally on the whole case. According to this scheme, the plaintiff of a suit leads evidence on the day of hearing. After he closes his evidence, if there is one defendant he leads his evidence. If there are several defendants and they independently contest the suit, they lead evidence one after the other. But according to the rule of prudence there is an exception. The exception has been best illustrated by a decision reported in AIR 1964 Guj 26, Shah hiralal Himatlal v. M. G. Pathak. It was held by a learned single Judge that if any of the defendants supports the plaintiff in whole or in part, then he should address the Court and lead his evidence first before the other defendants who do not support wholly or in part the plaintiff's case. If all the defendants completely oppose the plaintiff's case, then the question of order of leading evidence amongst the defendants is immaterial. It is only when the defendants are divided into two groups, one group consisting of the defendants supporting the plaintiff's case in part and the other group consisting of defendants who do not support the plaintiff's case in any part, that the question of order of leading evidence becomes important. In such cases among d