The main legal point established is that in a suit for defamation, the party making the libelous statements has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that the plaintiff is not entitled to any part of the relief sought.

JUDGMENT :

Debabrata Dash, J. - The petitioner by filing this application under Article 227 of the Constitution seeks quashment of an order dated 03.05.2007 passed by learned Civil Judge (Sr. Division) First Court, Cuttack in C.S. No. 140 of 2005.

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

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

The above noted suit i.e. C.S. No. 375 of 2002 has been filed by one Smt. Prava Sinha who happens to be the elder sister of these plaintiffs. It is stated that these plaintiffs are in no way concerned with the properties which are the subject matter of that suit and the dispute therein centers round Prava Sinha and this opposite party (defendant) who has been arraigned as a defendant therein.

The petitioners being the plaintiffs in C.S. No. 140 of 2005 filed a petition under Order 18, Rule 1 of the Code of Civil Procedure seeking a direction from the court to the opposite party (defendant) to begin with the hearing of the suit by leading evidence. This application has been rejected.

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

" xxxx xxxx xxxx xxxxx xxxx.

Perused the petition, objection, plaint averments and the W.S.. Order 18 Rule -1 C.P.C. provides right to begin. It states 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, in which case the defendant has the right to begin. In the present case it is the allegation of the plaintiff that the defendant has admitted about the acts done by him and disputed the claim of the plaintiffs. So, it is argued on behalf of the plaintiffs that the defendant has the right to begin first. On the other hand, it is argued on behalf of the defendant that since the plaintiffs have to prove their case by giving cogent evidence, at no stretch of imagination the defendant can be directed to begin evidence first. On perusal of both pleadings I find that the defendant has denied the allegations made against him which does not warrant that the defendant to begin his evidence first in this case. Rather the plaintiffs who have to prove their case by adducing clear and cogent evidence. Thus the petition filed by the plaintiffs to direct the defendant to begin the suit first cannot be sustained in the eye of law."

3. Heard learned counsel for the petitioners 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 dealing with this matter and those are:-

(i) The statements said to have been made by this opposite party who is the defendant in the present suit, being the defendant in the earlier suit are those in the written statement that he filed in the said suit i.e. C.S. No. 375 of 2002 filed by the elder sister of these petitioners for declaration of her right, title and interest over the land in suit form the subject matter.

Prior to this Asutosh, the brother of the opposite party had filed the suit for partition against the husband of the elder sister of these petitioners.

(ii) In the written statement filed by these petitioners in C.S. No. 375 of 2002, the following averments are being called as libelous

(a) Para-14 of the written statement -

"xx xx xx. Rather, the plaintiff's father and brothers etc. used to depend for their affairs of daily sustainable upon defendant or the defendant no.4 since they did not have sufficient income to maintain themselves, nor they were having any income out of their negligible extent of agricultural fie