Orissa High Court
Sandip Kumar Patel vs Smt. Iswari Patel .... Opposite Party on 26 November, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 01-Dec-2025 13:03:39
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.M.P. No.160 of 2025
(In the matter of an application under Article 227 of the Constitution of
India)
Sandip Kumar Patel .... Petitioner
-versus-
Smt. Iswari Patel .... Opposite Party
Advocate(s) appeared in this case:-
For Petitioner : Mr. S. Mishra, Advocate
For Opposite Party : Mr. N.C. Rout, Advocate
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
th 26 November 2025 B.P. Routray, J.
1. Heard Mr. S. Mishra, learned Advocate for the Petitioner and Mr. N.C. Rout, learned Advocate for the Opposite Party.
2. Present C.M.P. is directed against the order dated 08.01.2025 passed by the learned Civil Judge (Sr. Divn.), Kuchinda in C.S. No.42 of 2022, wherein the prayer of the Plaintiff for a direction to the Defendant to begin first in terms of Order 18 Rule 1 C.P.C. was allowed.
C.M.P. No.160 of 2025 Page 1 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Dec-2025 13:03:39
3. Present Petitioner is the Defendant in the suit. The Opposite Party being the Plaintiff filed the suit praying to declare the WILL No.1632100431 dated 03.09.2021 executed in favour of the Defendant as null and void and to cancel the same.
4. The Plaintiff is the wife of the executant of the WILL, namely, Dillip Kumar Patel, whereas the Defendants are the son of brother of the executant. The WILL was executed in favour of the Defendant by late Dillip Kumar Patel. After death of the executant on 23.01.2023, his wife, the present Plaintiff, filed the suit with the prayer which is re- produced below:-
"It Is therefore prayed that your honour may kindly graciously be pleased to allow the plaint and admit the same and pass order in favour of the plaintiff at the time of adjudication and to declare the will bearing no. 1632100431 dt. 03.09.2021 executed by Late Dillip Kumar Patel of Sub- Registrar, Kuchinda be declare null and void and cancel to meet the end of justice and for which act the plaintiff as in duty bound shall ever pray."
5. Here it needs to re-produce also paragraph 5 of the plaint, which reads as follows:-
"That, the defendant is the nephew of Late Dillip Patel and Late Dlllip Patel actually suffering from liver cancer and abdomen gastric disease for last one year prior to his death at C.M.P. No.160 of 2025 Page 2 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Dec-2025 13:03:39 his house. He was not in proper senses and unable to make any proper decision as to devolution of his property by will. Just before four month of his death, on dated 03.09.2021 the defendant Sandip Kumar Patel got executed a will from the deceased husband of the plaintiff of his properties aforesaid in his favour by fraud, when the deceased was unable to understand the nature of deed he executed and could not form any rational judgement relating thereto. The said will was executed on dt. 03.09.2021 before the Registrar Kuchinda without knowledge and consent of the plaintiff."
6. The Defendant appeared in the suit and filed his written statement raising the counter claim with the prayer to declare the WILL dated 03.09.2021 (the same WILL as mentioned in the plaint) as valid and binding upon all such parties. The prayer of the Defendant in the counter claim reads as under:
"The will bearing registration Number 1632100431 dt.3.9.2021 of the Office of Sub-Registration Officer, Kuchinda be declared as Valid one and binding upon the parties to the suit."
7. In such scenario, the Plaintiff filed a petition under Order 18 Rule 1, C.P.C. to direct the Defendant to begin the evidence first, as he has prayed in the counter claim to declare validity of the WILL. The learned trial court in the impugned order dated 08.01.2025 allowed such prayer on the ground that the burden lies on the Defendant to C.M.P. No.160 of 2025 Page 3 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Dec-2025 13:03:39 prove the WILL because if he fails, the Plaintiff being the wife of deceased-executant would be entitled for the property.
8. Rule 1 of Order 18, C.P.C. prescribes that, the Plaintiff has the right to begin unless the Defendant admits the facts alleged by the Plaintiff and contends that either in the point of law or on such other 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. The provisions of this Rule 1 prescribe the general rule that the Plaintiff has to begin the evidence and in exceptional cases, for such contingencies mentioned in the Rule, the Defendant will have the right to begin. As the Plaintiff is the master of the suit, even when the cross suit is filed by Defendant, generally he has the right to begin. The right to begin the evidence by the Defendant is exceptional to such general rule provided that the contingencies prescribed in Rule 1 are satisfied. The scheme of Rule 1 appears to be that as a normal Rule it is the privilege of the Plaintiff to lead his evidence first. If the Defendant decides to lead the evidence, the Plaintiff can always lead evidence in rebuttal. However, the analogy cannot be stretched further, in absence of a specific provision under Order 18 and its Sub-rules, in order to hold that it also confers power on the court to issue necessary C.M.P. No.160 of 2025 Page 4 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Dec-2025 13:03:39 directions compelling the defendant to lead his evidence before the Plaintiff adduces his evidence. It sounds little harsh.
9. In Mirza Niamat Baig and another vs. Sk. Abdul Sayeed and others, 2008 (II) OLR--568, this Court has observed as follows:-
"The law is well settled that a person who sets the law in motion and seeks a relief before this Court, must necessarily be in a position to prove his case and get the relief moulded by the law. The right to begin is to be determined by the rules of evidence. As a general rule, the party on whom the burden of proof rests should begin, in no case, the plaintiff can be allowed to take any undue advantage over the defendant, whatever may be the position or stand the defendant takes, for the very reason that the defendant is expected to answer the claim made by the plaintiff in the suit. In the wording "unless the defendant admits the facts alleged" occurring in Order 18, Rule 1, C.P.C. the word "facts" means all the material facts. Thus, where a defendant admits only some of the facts alleged by the plaintiff, there the plaintiff should begin.
As the plaintiff has raised the question of fraud to have been practised on him, it is he who should begin first, as per the provision contained in Order 18, Rule 1, C.P.C. In the present case, the defendants have taken the plea of previous partition. In order to prove their plea, they have to begin first and thereafter the plaintiff is to adduce rebuttal evidence. In the present case as the plaintiff-opposite parties have alleged fraud, they have to first establish that fraud had been C.M.P. No.160 of 2025 Page 5 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Dec-2025 13:03:39 practised and thereafter the defendant has to adduce rebuttal evidence. The defendants only admit a part of the allegation of the plaintiff regarding earlier partition.
The learned counsel appearing for opposite party No.1 cited a decision of this Court in the case of Purastam alias Purosottam Gaigouria and others v. Chatru alias Chatrubhuja Gaigouria, 1992 (I) OLR 72, where it has been held that in a suit for partition on the ground of joint family property where the defendant's plea is previous partition, the defendant has to begin adducing evidence first as he has pleaded regarding previous partition. But, in the case at hand, the facts are different. The aforesaid decision is thus not applicable to the present case as in the reported decision, there was no plea of fraud."
10. As seen from the facts of the case at hand, narrated in the plaint and the written statement including counter claim, the basis of claim and counter claim is the WILL dated 03.09.2021. When the Plaintiff alleges fraud in execution of said WILL and therefore seeking cancellation of the same as null and void, the Defendant seeks declaration of his title based on valid execution of said WILL. Thus, the WILL dated 03.09.2021 being the subject matter in the suit pleaded by both parties, the validity or voidity of the WILL becomes the crux of the dispute, which needs to be adjudicated in the suit. It is the case of the Plaintiff that the WILL has been executed or managed to be C.M.P. No.160 of 2025 Page 6 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Dec-2025 13:03:39 executed by the Defendant in his favour by practicing fraud since as per the allegation of the Plaintiff, the executant was not in a position or sound health to execute the WILL on 03.09.2021. Thus, it is found that if the claim of the Plaintiff to declare the WILL as void is established, then the Defendant will be debarred of his right to prove the valid execution of the WILL. The allegation of fraud in execution of the WILL is so related to the contentions of the Defendant to treat as valid, that the onus on the Plaintiff to establish his contention cannot be waived out in the facts of the case. It is because even if the prayer of the Defendant would be allowed then also the onus on the Plaintiff to prove his contentions regarding fraud cannot be wiped out.
11. It is the settled law that the party who alleges fraud is burdened to prove the fraud. The burden of proof may shift from Plaintiff to Defendant and Defendant to Plaintiff depending on the facts in issue. As stated above, Order 18 Rule 1, C.P.C. prescribes the general rule that the Plaintiff to begin first and as a matter of exception the Defendant would be directed to begin first in the contingency that, first, if he admits the facts alleged by the Plaintiff in the plaint and contends either additional facts or some point of law that the Plaintiff is not entitled for any part of the relief. In the instant case, as the C.M.P. No.160 of 2025 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Dec-2025 13:03:39 Defendant does not admit the claim of the Plaintiff on the fraud in execution of WILL, but only admits that the WILL is executed in his favour. Therefore, it is clear that the Defendant denies the contentions of the Plaintiff. Rather it is seen that the Plaintiff admits the contentions of the Defendant about existence of the WILL and want to declare the same as null and void on the ground of fraud as an additional fact. Therefore, the fact of the case does not fall within the four-corners of the provisions under Rule 1 Order 18, C.P.C. to compel the Defendant to begin first.
12. In view of the discussions made above and the observations made, the impugned order dated 08.01.2025 passed by the learned Civil Judge (Sr. Divn.), Kuchinda in C.S. No.42 of 2022 is set aside.
13. The C.M.P. is allowed.
(B.P. Routray) Judge B.K. Barik/Secretary C.M.P. No.160 of 2025 Page 8 of 8