JUDGMENT

AMIT BANSAL, J. (ORAL)

[VIA VIDEO CONFERENCING]

I.A. No. 3026/2022 (of the defendant u/O-XVIII R-1 of the CPC)

1. The present application has been filed on behalf of the applicant/defendant under Order XVIII Rule 1 of the Code of Civil Procedure, 1908 (CPC) seeking a direction that the non-applicants/plaintiffs be directed to lead the evidence in terms of Order XVIII Rule 1 of the CPC.

2. Issue notice.

3. Notice is accepted by the counsel appearing on behalf of the non- applicants/plaintiffs, on advance notice. He further submits that he does not wish to file a reply to the said application and has argued the matter straightway.

4. Accordingly, arguments of both the counsels have been heard.

5. On 14th February, 2022, the following issues were framed in the case:

(i) Whether the suit is bad on account of misjoinder of parties?

OPD (ii) Whether the suit is bad on account of misjoinder of causes of action? OPD (iii) Whether the defendant has pledged any ancestral gold and diamond jewellery worth Rs.4,40,00,000/- with the plaintiffs?

OPD (iv) Whether there is any delivery note dated 11th July, 2018 in existence signed by the plaintiff No. 1? OPD (v) Whether the plaintiffs are entitled for a recovery of Rs.4,00,00,000/- along with interest against the defendant as prayed for? OPP (vi) If so, whether the plaintiffs are entitled for any interest, if yes, for what period and at what rate? OPP (vii) Relief.

6. Taking into account that in most of the substantive issues, the burden to prove is on the applicant/defendant, it was directed that the applicant/defendant would lead the evidence.

7. At the outset, reference may be made to Order XVIII Rule 1 of the CPC as under:

“1. Right to begin.—The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contents 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.”

8. The counsel for the applicant/defendant places reliance on Order XVIII Rule 1 of the CPC aforesaid to contend that it is the choice of the defendant to begin the evidence or not and if the defendant chooses not to begin, the plaintiff has to begin his evidence first. It is further contended that the Court does not have the power to direct the defendant to lead the evidence first. In this regard reliance has been placed on the judgment of Co-ordinate Benches of this Court in Om Prakash Vs. Amit Choudhary & Ors., 2019 (177) DRJ 93 and Sabiha Sultana & Ors. Vs. Ahmad Aziz &

Anr., 2017 SCC OnLine Del 10229.

9. On the other hand, it is contended on behalf of the counsel for the non-applicants/plaintiffs that in terms of Order XVIII Rule 1 of the CPC, in the event that the defendant admits the facts alleged by the plaintiff and alleges additional facts on account on which plaintiff is not entitled to the reliefs claimed in the suit, in such an event, the defendant has to begin the evidence. In the present case, admission has been made by the non- applicant/defendant of the material factum of the defendant receiving the sum of Rs.4,00,00,000/- from the non-applicants/plaintiffs and which is noted in the order dated 27th January, 2022 passed by the Court. Therefore, in the facts and circumstances of the present case, it is the non- applicant/defendant who should begin the evidence. Reliance is placed on Sections 102 and 103 of the Indian Evidence Act, 1872. Reliance is also placed on the judgment dated 22nd August, 2008 of the Division Bench of this Court in FAO (OS) No.44/2008 titled N.K. Tomar Vs. Viraj Impex Ltd.

and judgment of the Co-ordinate Bench of this Court in Achala Mohan Vs. Jayashree Singh MANU/DE/0798/2020 [SLP (C) No.7360/2020 preferred whereagainst was dismissed on 16th November, 2020].

10. I have heard the counsels for the parties. Let me first deal with the judgments cited on behalf of the parties.

11. Counsel for the applicant/defe