Orissa High Court
Chandra Sekhar Pattjoshi vs Jogendra Pattjoshi And 8 Ors. on 10 February, 2004
Equivalent citations: AIR2004ORI131, 97(2004)CLT465, AIR 2004 ORISSA 131, (2004) 18 ALLINDCAS 667 (ORI), (2004) 2 CIVILCOURTC 9, (2004) 3 CIVLJ 483, (2004) 2 CURCC 237, (2004) 97 CUT LT 465
Author: P.K. Tripathy
Bench: P.K. Tripathy
ORDER P.K. Tripathy, J.
1. Heard,
2. Petitioner moved an application entitling that to be a petition under Order 18, Rule 1, CPC with the prayer to direct the defendants No. 8 and 9 to adduce evidence before the petitioner is called upon to adduce defence evidence. On 2.4.2003, in Title Suit No. 37 of 1994 learned Civil Judge (Sr. Division), Dharmagarh in a composite order, on that application and the application for amendment moved by defendant Nos. 8 and 9, rejected both the petitions. Therefore, petitioner challenges to the order, in which his application under Order 18, Rule 1, CPC has been rejected. Learned Civil Judge passed that order on the ground that the provision in Order 18, Rule 1, CPC can only be invoked by the plaintiff and not by the -defendants.
3. To understand the dispute as well as the contention of the petitioner, it is necessary to refer to the facts involved in the suit. In that respect petitioner has filed typed copy (true copy attested) of the plaint, written statement of defendant No. 1 and also the joint written statement of defendant Nos. 8 and 9.
4. Plaintiff has provided a genealogical table in the plaint. The contested defendants have not disputed to correctness of that genealogy save and except the defendant Nos. 8 and 9 mentioning about omission of the names of the two wives of Maheswar, grandfather of the parties. It appears from that genealogy that plaintiff, who is opposite party No. 1 in this writ petition, defendant No. 1 who is the petitioner in this writ petition and defendant Nos. 2, 8 and 9 (Opp. Party Nos. 2, 8 and 9 in the writ petition) are the sons of late Binod Bihari Pattajoshi and grandsons of Late Maheswar Pattajoshi. Said Maheswar died in the year 1954 whereas Binod Bihari died in the year 1992.
5. The erstwhile joint family of the plaintiff and the defendants including their father and grandfather possessed landed properties in different villages including villages coming within the jurisdiction of the State of Madhya Pradesh (adjoining to the border of Orissa from the side of Kalahandi District). According to the further claim of the plaintiff, because of family dispute raised by the defendants 8 and 9, a partition was effected and that was registered on 30.12.1961 and each of the defendants 8 and 9 were allotted land separately more than which they could have received to their respective shares. Though the other landed properties were equally partitioned amongst the other co-sharers including Binod, but all such properties were again jointly possessed on a reunion by the said members of the family excluding defendant Nos. 8 and 9. Several items of land had been acquired by the father or grandfather of the plaintiff in the names of different members of that joint family and those lands were not allotted to the shares of defendant Nos. 8 and 9, and therefore such property remain as joint family properties of the plaintiff and the other defendants. After the said partition in the year 1961, plaintiff's father also purchased several items of immovable properties and all such properties were thrown to the common hotchpotch. Plaintiff and the defendants live at separate places in furtherance of their service or avocation, as the case may be. Defendant No. 1, taking advantage of absence of the plaintiff and in connivance with defendant No. 2, obtained sham and nominal documents from their father Binod with respect to some of the plaint scheduled properties and obtained registered instrument in favour of defendant No. 1 or his wife. Accordingly, with that bone of contention plaintiff has filed the suit for partition of the property which was jointly possessed by the plaintiff and the other defendants excluding defendant Nos. 8 and 9, and also to declare the registered sale deeds executed by Binod in favour of defendant No. 1 and his wife as illegal, invalid and inoperative.
6. In his written statement, white disputing to the plaint averments that their grandfather Maheswar was owner of vast extent of landed properties, defendant No. 1 admits about the partition of the year 1961 but he disputes about the rest of the allegations, as noted above, including obtaining the sale deeds from his father by use of undue influence, etc. He has narrated a different story about the status of the suit scheduled properties white conceding to the prayer for partition but resisting to the prayer for declaring the sale deeds of the year 1991 to be invalid and inoperative.
7. Defendants 8 and 9, as noted above, have filed a joint written statement. In their written statement while admitting about the registered partition deed of the year 1961, they have contended that such document was merely a paper transaction so as to avoid rigority of the Ceiling Law. They have asserted their right, title and interest over the entire suit-scheduled lands, which include the land allotted to their share in the deed of partition of the year 1961. They have supported to the claim of the plaintiff regarding exercise of undue influence by defendant No. 1 on their father. They have also challenged to the acquisition of other properties in the name of different members of the joint family and in that respect claimed that all such properties are joint family properties of all the parties. They have, however, not stated anything in their written statement whether they support or oppose to the prayer for partition in the manner plaintiff has prayed.
8. The aforesaid pleadings undoubtedly give rise to several issues, the burden of proving of some equally rests on each of the parties. It is the admitted position on record that, in discharge of his burden plaintiff has already adduced his evidence. As noted above, now the dispute is as to which of these two sets of contesting defendants is to lead the evidence first as against the claim of the plaintiff and the other set of defendants. Undoubtedly, in that respect the provision of law in Order 18, CPC is completely silent in as much as Order 18, Rule 1, CPC only provides relating to the right to begin. Rule 3 of Order 18 provides the procedure to be adopted when a case involves several issues and the burden of proof of same lies on each of the parties. In that case the Rule provides that, plaintiff may adduce evidence on the issues, the burden of which lies on him reserving his right to rebut to the evidence on the other issues, the burden of which lies on the defendants and may adduce such rebuttal evidence after such defendants discharge their burden.
9. Learned counsel for the petitioner, in support of the prayer of defendant No. 1, relies on the case of Sukana Mallik and Ors. v. Khatu Mallik and Ors., 67 (1989) CLT 781. In that case, while considering the chronology in which the Commissioner deputed under Order 26 is to be examined and cross-examined, this Court, referring to the case of Motiram Narwari v. Lalit Mohan Ghose, AIR 1920 Patna, 94, observed that:
"... it is to order that those who support the plaintiff's case should cross-examine the plaintiff's witnesses first, if they desire to do so, before the defendants who oppose the plaintiff's case to do so. Any other practice would be inconvenient and might work an injustice to those defendants who oppose the plaintiff's case...."
So, it is logically follows that if there are different sets of defendants opposing to the plaintiff's case in varying degrees, that is to say, supporting and opposing to the plaintiff's case issue-wise, then the set of defendants opposing to the plaintiff's case most, be allowed to cross-examine the plaintiff's witnesses after the other sets of defendants have cross-examined.
10. In the case of Sri Luxminrusingh Swami and Anr. v. Madhusudan Panda, 34 (1968) CLT 543, Hon'ble Shri G.K. Misra, J. (as His Lordship then was) while in seisin of a dispute covered by the provision under Order 18, Rule 3, CPC, has been pleased to propound that:
"Under Order 18, Rule 3, Civil Procedure Code, there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence...."
11. Procedural law cannot be full-proofed to meet with any situation that may arise except providing the procedure broadly. Such procedure may not be comprehensive to meet with any and every situation, which may arise in course of a proceedings. It cannot be comprehensive to meet all the situations, which may arise in a proceeding at different stages. Therefore, in their wisdom the law-makers have provided in the Code of Civil Procedure the provision in Section 151 authorising the Court to invoke the inherent power to prevent abuse of the process of the Court or to make such orders as may be necessary for the ends of justice. The well settled principle of law in that context is that the inherent power should not be invoked, which has the effect of offending or sidetracking specific provision of law but it always should be to add to the furtherance of justice for smooth adjudication of the dispute pending before the Court. .
12. The provision of law, as noted in Order 18, Rule 3, CPC or for that matter in Order 18, Rule 1 does not speak 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 to the other. In such circumstance the Court has to apply its wisdom based on the principle on which the provision in Order 18, Rule 3 has been made and can resolve the dispute of a present nature. Virtually that is the wisdom generated in the above noted two decisions of this Court. Thus, keeping in view the aforesaid principle, the provision of law and the factual controversy amongst the parties, this Court finds that the Court below was right in its direction by directing defendant No. 1 to adduce evidence first before defendant Nos. 8 and 9 are called upon to adduce evidence, in as much as the core issue which is involved in this case is relating to whether there was an actual partition in the year 1961. That issue is being supported by defendant No. 1 in support of the claim of the plaintiff, whereas defendant Nos. 8 and 9 very much dispute to that issue and claim their joint status with the other family members in the family of Maheswar, the common ancestor. If defendant No. 1 feels that he wants to reserve the right to give rebuttal evidence on the issues, the burden of proof of which lies on defendant Nos. 8 and 9, then he may exercise that option at the stage of commencement of adducing his evidence by expressly making statement to the Court and in that respect the trial Court is to consider the same and to pass appropriate order.
Accordingly, this Court finds that the Court below has not committed any jurisdictional error or illegality in rejecting the application filed by the petitioner. Thus, the impugned order does not fall within the scope of interference under Article 227 of the Constitution of India. Accordingly the writ petition is dismissed.