The burden of proof rests on the party seeking relief, and if fraud is alleged, it must be established before the opposing party can adduce rebuttal evidence.

JUDGMENT :

1. Heard Mr. S.C. Ghose, learned Counsel for the petitioners, and Mr. P.C. Mishra, learned Counsel appearing for opposite party No. 17

2. In this writ application, defendants 3 and 6 are the petitioners. They have challenged the order dated 20.5.2008 passed by the learned Second Additional Civil Judge (Senior Division), Cuttack in C.S. No. 148 of 2006 whereby he accepted the application filed by the plaintiff under Order 18, Rule 1, C.P.C. and directed the defendants to adduce evidence first.

3. In T.S. No. 539 of 1990 filed by the present opposite party No. 1 -plaintiff, the defendants had filed their written-statement stating regarding the previous partition of the suit property. Said suit was decreed and plaintiff's right, title and possession was declared on compromise between the parties and in the present suit, the present opposite party No. 1 prayed for declaring the aforesaid decree as null and void as it had been obtained by practicing fraud and he had not put his signature in the said compromise petition and had also not executed the Vakalatnama.

4. The law is well settled that a person who sets the law in motion and seeks a relief before the Court, must necessarily be in a position to prove his case and get the relief moulded by the law. The right to begin is to be determined by the rules of evidence. As a general rule, the party on whom the burden of proof rests should begin. In no case, the plaintiff can be allowed to take any undue advantage over the defendant, whatever may be the position or stand the defendant takes, for the very reason that the defendant is expected to answer the claim made by the plaintiff in the suit. In the wording "unless the defendant admits the facts alleged" occurring in Order 18, Rule 1, C.P.C., the word "facts" means all the materials facts. Thus, where a defendant admits only some of the facts alleged by the plaintiff, there the plaintiff should begin.

5. As the plaintiff has raised the question of fraud to have been practised on him, it is he who should begin first, as per the provision contained in Order 18, Rule 1.C.P.C. In the present case, the defendants have taken the plea of previous partition, In order to prove their plea, they have to begin first and thereafter the plaintiff is to adduce rebuttal evidence. In the present case as the plaintiff-opposite parties have alleged fraud, they have to first establish that fraud had been practised and thereafter the defendant has to adduce rebuttal evidence. The defendants only admit a part of the allegation of the plaintiff regarding earlier partition.

6. The learned Counsel appearing for opposite party No. 1 cited a decision of this Court in the case of Purastam alias Purosottam Gaigouria and Others Vs. Chatru alias Chatrubhuja Gaigouria, where it has been held that in a suit for partition on the ground of joint family property where the defendant's plea is previous partition, the defendant has to begin adducing evidence first as he has pleaded regarding previous partition. But, in the case at hand, the facts are different. The aforesaid decision is thus not applicable to the present case as in the reported decision, there was no plea of fraud.

7. Therefore, the impugned order dated 20.5.2008 passed by the learned Second Additional Civil Judge (Senior Division), Cuttack in C.S. No. 148 of 2006 and direct the trial Court that the plaintiff shall begin his case as he has taken the plea of fraud and thereafter the defendants shall adduce rebuttal evidence.

With the above observation and direction, the writ application as well as Misc. Case No. 9132 of 2008 is disposed of)

8. Urgent certified copy of the order be granted as per rules.