Orissa High Court
Jayaram Sahoo @ Behera vs Banamali Sahoo & Others ...... Opp. ... on 3 August, 2012
Author: M.M. Das
Bench: M.M. Das
ORISSA HIGH COURT: CUTTACK.
W.P.(C). No. 12126 of 2009
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
--------------
Jayaram Sahoo @ Behera .... Petitioner
-Versus-
Banamali Sahoo & others ...... Opp. parties
For Petitioner : Mr. A.P. Bose
For opp. parties: M/s. D.Mohanty, R.C. Jha,
A.C.Jena, T.Choudhury,
R.C. Sahoo & A. Bajarjee.
(For O.P. 1 )
---------------------------------
Decided on 03.08.2012
------------------------------------
PRESENT :
THE HONOURABLE SHRI JUSTICE M.M. DAS
---------------------------------------------------------------------------------------------------
M. M. DAS, J.The plaintiff has filed the suit with the following prayers:-
"(a) declare that the defendant No.1 is not the natural or the adoptive son of the plaintiff;
(b) pass a decree that, the gift deed bearing No.380 dt. 20.6.2005 of Sub-Registrar office, Sakhigopal by plaintiff in favour of defendant No.1 is ab initio void, illegal and no title has passed to defendant No.1 by virtue of the said illegal gift deed in respect of "A" and "B"
schedule property is the exclusive property of plaintiff and defendants have no manner of right, title, interest or possession over "A" Schedule property and defendants being the sons of Late Bihari Behera S/o. Late Bhagaban Behera are no way connected with the "A" and "B" Schedule property and they have no manner of right, title or interest over "A" schedule property and by virtue of amicable partition 2 plaintiff is in possession of his 1/3rd share, i.e., A.0.03 2/3 (three and two-third) decimals land in "B" schedule land, it is his exclusive property of the plaintiff;
(c) the possession of the plaintiff over the "A" and "B" schedule property be confirmed in the event of dispossession during the pendency of the suit the plaintiff be given recovery of possession through process of the Court ;
(d) the defendants be prohibited by decree of permanent injunction from interfering in the plaintiff's peaceful possession over the suit property in any manner ;
(e) the cost of the suit be decreed against the defendants ;
(f) any other relief or reliefs deemed just and proper also be given."
2. The plaintiff, in paragraph - 9 of the plaint has, inter alia, stated that recitals of the document dated 20.06.2005 are down right false and fabricated and the defendant no.1 is neither the natural son nor he has ever been adopted by the plaintiff at any point of time or he has been treated as such in the society or by the relations of the plaintiff nor any giving and taking ceremony ever was held by the plaintiff or by his wife at any point of time.
3. The defendant no.1 - petitioner, in reply to the said averments, denied the same and asserted that the recitals in the documents dated 20.06.2005 was as per the instruction of the plaintiff with his active knowledge and desire in consultation with other family members, upon which he instructed the scribe and the deed was scribed as per his instruction. The defendant no. 1 - 3 petitioner specifically asserted that he was adopted by the plaintiff by a giving and taking ceremony performed at that time. He also denied the other allegations made in the plaint.
4. The plaintiff - opposite party No.1 filed an application under Order - 18, Rule 1 CPC seeking a direction from the learned trial court to direct the defendant to begin the evidence first. The learned trial court, after noting down the case of the plaintiff and the defendant no.1 and after perusal of the plaint and the written statement, concluded as follows :-
"In the instant suit, though the plaintiff has prayed to declare the defendant no. 1 as not his son or adopted son and as the defendant no. 1 claimed himself to be the adopted son of the plaintiff, onus lies on him to prove the said fact. If he would not adduce any evidence he would fail in the suit. So onus lies on him to prove the said fact if he would fail in the suit. So onus lies on him to begin the suit first.
Being aggrieved by the said order, the defendant No.1 has come up in the present writ application.
5. In view of the above pleadings of the parties, the moot question to be decided in the present writ application is as to whether the provision under Order - 18, Rule 1 CPC is applicable to the facts of the case, basing on which the learned trial court has directed the defendant no. 1 - petitioner to begin the evidence first. For brevity, Order -18, Rule 1 CPC is extracted hereunder:-
"ORDER - XVIII HEARING OF THE SUIT AND EXAMINATION OF WITNESSES
1. Right to begin - 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 4 plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin."
6. Mr. Bose, learned counsel for the petitioner relies upon the decisions in the case of Chandra Sekhar Pattjoshi v. Jogendra Pattjoshi and others, 2004 (1) CLR 392 and Mirza Niamat Baig and another v. Sk. Abdul Sayeed and others, 2008 (II) OLR 566. Relying upon the above decisions, he submits that Order - 18, Rule 1 CPC can only be made applicable where the defendant admits the facts alleged by the plaintiff or partially admits such facts and pleads a different set of fact, which is required to be proved by the defendant as the onus to prove such facts lies on the defendant.
7. In the case of Chandrasekhar Pattjoshi (supra), this Court was dealing with the aforesaid provision, which arose in a partition suit. This Court, referring to the provisions under Order
- 18, Rule 1 CPC as well as Order - 18, Rule 3 CPC, held that the provisions of law as noted in Order - 18, Rule 3 CPC or for that matter Order - 18, Rule 1 CPC does not speak about the order of adducing evidence by two sets of contesting defendants, when each of them admit different part of the claim of the plaintiff and dispute the other. In such circumstances, it was held that the court has to apply its wisdom based on the principle on which the provision of Order 18, Rule 3 has been made and can resolve the dispute of the nature involved in the said case. The said ratio 5 having been laid down in a different set of facts, though not strictly applicable to the present case, it is found that order 18, Rule 1 C.P.C. can only be made applicable, where the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts pleaded by him, the plaintiff is not entitled to any part of the relief which he seeks. If such a case is not made out, the rule is that the plaintiff has the right to begin the suit as only in such a case, the exception is that the defendant shall begin the case.
8. In the case of Mirza Niamat Baig and another (supra), this Court, while considering the scope of Order 18, Rule 1 C.P.C. referring to the said provision and the phrase "unless the defendant admits the facts alleged by the plaintiff" held that the word "fact" means all the materials facts and, thus, concluded that where a defendant admits only some of the facts alleged by the plaintiff, there the plaintiff should begin.
9. Mr. Mohanty, learned counsel for the opp. party has relied upon the decision in the case of Purastam alias Purosottam Gaigouria and others v. Chatru alias Chatrubhuja Gaigouria, 1992 (I) OLR 72 and submitted that this Court in the said case interpreting Order 18, Rule 1 CPC decided that where the onus lay on the defendant to prove a particular fact alleged by him, he is to begin first. However, on examining the said decision, it appears that this Court in the said case was 6 considering the scope of 115 C.P.C., i.e., revisional power of this Court and while considering the said question, in a revision against an order passed under Order 18, Rules 1 and 2 C.P.C., concluded that an erroneous decision relating to 'the right to begin' in clear breach of the provisions of Rules 1 and 2 of Order 18 C.P.C. causes irreparable injury to the party as noted in the case of Balakrishna Kar v. H.K. Mahatab, AIR 1954 Orissa
191. This Court in the case of Purastam alias Purosottam Gaigouria and others (supra) held as follows:-
"In this case, the plaintiff sought partition alleging that the property was joint family property and had not been decided by metes and bounds. The defendant - petitioners placed a previous partition since 1960-61 to defeat the plaintiff's suit. In view of the plea of the defendants that there was a previous partition, the learned Subordinate Judge called upon the defendants to begin. The plaintiff's plea that the property was joint family property having been admitted by the defendants and the latter having pleaded previous partition, the defendants are to lose if neither party adduced evidence, the burden being on the defendants to prove previous partition. Only when the defendants lead some evidence in proof of previous partition, the plaintiff would be obliged to lead evidence in rebuttal. Rightly, therefore, the learned Subordinate Judge called upon the defendants to begin. We, therefore, see no merit in this revision which is accordingly dismissed. There would be no order as to costs."
.
10. In view of the above decisions, it is seen that only when the defendant admits the allegations made by the plaintiff in the plaint, but has pleaded a different set of additional facts, the onus of proving such facts lying on him, the exception of Order 18, Rule 1 C.P.C. providing that the defendant should begin the 7 evidence first would be applicable, otherwise, the general principle as envisaged under Order 18, Rule 1 C.P.C. shall be followed.
11. In the present case, the plaintiff has alleged fraud to have been practiced on him in getting the alleged deed of adoption executed and has also pleaded that the defendant is not his adopted son and there was never any giving and taking ceremony. The defendant no. 1 has denied such pleadings and in addition to such denial, has pleaded that on 8.8.1967 he was given in adoption to the plaintiff by his natural parents and the giving and taking ceremony was performed. In such nature of pleadings, applicability of Order 18, Rule 1 C.P.C. does not arise as the defendant has not admitted any fact which has been alleged by the plaintiff.
12. However, an adoption, if proved, derails the natural line of succession. The person, who claims to have succeeded to any property by virtue of he being adopted to a family, onus always lies on such person to prove the fact of adoption. Hence, in the instant case, when the plaintiff has made allegations in support of his case, by advancing a pleading which is negative in form, but affirmative in essence, should ordinarily begin the evidence. However, as adoption has been pleaded by the defendant, onus will lie on him to prove such adoption and thereafter, the plaintiff is required to be afforded with an 8 opportunity to lead rebuttal evidence to such evidence adduced by the defendant.
13. The impugned order, therefore, cannot be sustained. The same is accordingly quashed/set aside. The learned trial court, i.e., learned Civil Judge (Senior Division), Puri shall make an attempt to dispose of the suit finally by end of February, 2013. The right of rebuttal of the plaintiff shall be reserved so that after defendant concludes his evidence, the plaintiff would be given opportunity to lead rebuttal evidence, if he so chooses, in respect of the evidence adduced by the defendant with regard to the fact of adoption.
14. With the aforesaid directions and observations, the writ petition is allowed. Consequently, all pending Misc. Cases stand disposed of.
The interim order of stay of further proceedings of the suit stands vacated.
........................
M.M. Das, J.
Orissa High Court, Cuttack.
August 3rd , 2012/ Subha/Biswal 9