JUDGMENT

The petitioner by filing this application under Article 227 of the Constitution seeks quashment of an order dated 03.07.2006 passed by learned Civil Judge (Sr. Division), Cuttack in C.S. No.418 of 2004.

2. Facts necessary for the purpose are stated hereunder :-

The opposite party (plaintiff) has filed the above noted suit for damages on account of libelous statement made in the written statement filed by this petitioner who is the defendant in the present suit as also defendant in C.S. No.375 of 2002, claiming compensation.

The opposite party being the plaintiff in C.S. No.418 of 2004 filed a petition under order 18 Rule 1 of the Code of Civil Procedure seeking a direction from the Court to the petitioner (defendant) to begin with the hearing of the suit by leading evidence. This application has been allowed directing the petitioner to begin with the hearing of the suit first.

At this place, it is better for proper appreciation to reproduce the part of the order of the trial Court:-

“xxx xxx xxx

Order 18 Rule 1 provides that the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in the facts of lower in additional facts the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has a right to begin. It is undisputed that there has been use of scandlour (sic) and dispersing (sic) words in the W.S. filed by the defendant for which the defendant has admitted the facts alleged by the plaintiff in the present suit. Now, the facts remains that the words used are devoid of malafideness or based on truth. Thus the burden lies on the defendant to begin the suit first since he has admitted the case of the plaintiff, put up on 25.07.2006 for hearing of the suit from the side of the defendant who is to begin the suit first.”

3. Heard learned Counsel for the petitioner and opposite party. I have carefully gone through the order in question as also the rival pleadings. From the beginning some important aspects are required to be kept in view in dealing with this matter and those are:-

(i) The statements is said to have been made by the petitioner who is the defendant in the present suit, being the defendant in the earlier suit, in the written statement that he filed in the said suit i.e. C.S. No.139 of 2002 filed by the opposite party for declaration of her right, title and interest over the land in suit from the subject matter.

Prior to this Asutosh, the brother of the petitioner had filed the suit for partition against the husband of the opposite party.

(ii) In the written statement filed by this petitioner in C.S. No.375 of 2002, the following averments have been called as libelous.

(a) Para-23, page-12 (last line)-” xxx xxx xxx.

Therefore, the contract for sale on payment thereof being deferred to a different date are all imaginary and camouflaged expressions of wicked mind.”

In para-24, page -12 – That, the contentions raised in paragraphs 40 to 42 are mischievous manifestation of a crooked mind and hence all those allegations are stoutly denied,. Xxxx xxx”.

(b) Page – 15 of his written statement under the sub-paragraph :-

“The plaintiff’s father late Rohini Kumar Sen, a native of Midnapur in West Bengal was a person below poverty level who was having 11 bigots of landed properties inclusive of homestead as evident from the attached R.O.R. which indicates insufficiently for the maintenance of the family for the whole year for which they used to depend upon the relatives like late Rabindra or his son at Cuttack. The continuous stay of the plaintiff’s paternal family members at Cuttack created annoyance and on several occasions, the father of this defendants reacted sharply, but such sarcasm and ridicule were easily allowed by the parents of the plaintiff in most impudent (sic) manner.”

The petitioner undeniably has filed the written statement duly signed by him. However, it is denied that such statements made in t