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VISHWAJITH SHETTY
Deenanath – Appellant
Versus
Chandrahas – Respondent
ORDER (ORAL )
This writ petition under Article 227 of the Constitution of India is filed by the defendant with a prayer to set aside the order dated 10.11.2021 passed in O.S.No.193/ 2019 by the Court of Principal Senior Civil Judge and CJM, Mangaluru, D.K., on the memo dated 27.09.2021 filed on behalf of the plaintiffs.
2. Heard the learned counsel appearing for the parties.
3. Plaintiffs have filed O.S.No.193 of 2019 before the jurisdictional civil Court, Mangaluru D.K, District against the petitioner herein seeking the relief of partition and separate possession of the suit schedule ‘A’ property and to allot 1/5th share each in the suit schedule ‘A’ property. The petitioner / defendant had opposed the suit claim by filing a detailed written statement and it was contented that the father of the plaintiffs and defendant, namely K. Ananda had executed a will dated 11.11.2007, bequeathing the plaint item No.3 in his favour. In the said suit, a memo was filed on behalf of the plaintiffs stating that at present they have no evidence to lead and reserving their right to lead rebuttal evidence, the defendant may be asked to lead evidence. The said memo was opposed by the defendant by fili
Examination of witnesses – Court has no power to issue a direction to defendant compelling him to lead his evidence before plaintiff adduces his evidence.
The court upheld the principle that, ordinarily, the plaintiff must lead evidence first, barring exceptions, reaffirming the proper application of civil procedural rules regarding burden of proof.
The main legal point established in the judgment is the interpretation of Order XVIII Rule 1 of the CPC and the court's discretion to direct the defendant to lead evidence first.
The plaintiff cannot request the court to direct the defendant to lead evidence first, and the defendant's right to begin is contingent upon specific admissions by the defendant.
A party in a civil suit has the right to lead rebuttal evidence on issues where the burden of proof lies on the opposing party, even if the party has the burden of proof on other issues.
A party's right to lead rebuttal evidence is forfeited if not reserved before the opposing party begins their evidence, as per Order 18 Rule 3 CPC.
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