Orissa High Court
Rama Krushna Mohanty And Another vs Bala Krushna Mohanty And Others on 26 July, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
C.M.P.No.262 of 2016
In the matter of an application under Article 227 of the Constitution
of India.
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Rama Krushna Mohanty and another .... Petitioners
Versus
Bala Krushna Mohanty and others .... Opposite parties
For Petitioners -- Mr.Rudra Narayan Parija,
Advocate
For Opposite parties-- Mr.Hemanta Kumar Behera,
Advocate
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
___________________________________________________________________
Date of Hearing:19.7.2017 & Date of Judgment :26.7.2017
Dr.A.K.Rath, J.This petition challenges the order dated 8.1.2016 passed by the learned Civil Judge (Sr.Division), Aska in Civil Suit No.18 of 2014, whereby and whereunder, the learned trial court allowed the application of the plaintiff under Order 18 Rule 1 C.P.C. and directed the defendants to begin first.
2. Opposite party no.1 as plaintiff instituted the suit for partition impleading the petitioners and opposite parties 2 and 3 as defendants. Pursuant to issuance of summons, defendants 1 and 2 (petitioners herein) entered appearance and filed written statement 2 denying the assertions made in the plaint. The specific case of the defendants 1 and 2 is that item nos.2 and 4 of the suit schedule properties are their self-acquired properties. The defendants 3 and 4 filed a separate written statement. While the matter stood thus, the plaintiff filed an application under Order 18 Rule 1 C.P.C. for a direction to defendants 1 and 2 to begin first. The defendants 1 and 2 filed objection. The learned trial court allowed the same.
3. Heard Mr.Rudra Narayan Parija, learned Advocate for the petitioners and Mr.Hemanta Kumar Behera, learned Advocate for the opposite parties.
4. Mr.Parija, learned Advocate for the petitioners submitted that the Order 18 Rule 1 CPC stipulates the plaintiff to lead his evidence first subject to exception as stated therein. When defendants 1 and 2 do not admit the facts alleged by the plaintiff and contend that either in point of law or on some additional facts alleged by the defendants, the plaintiff is not entitled to any part of the relief, in such an eventuality, the defendants have the right to begin. It is further submitted that in a suit for partition the plaintiff is a defendant and vice versa. The plaintiff had not filed the petition on the very first day of hearing. After taking several adjournments, the plaintiff filed the application to protract the litigation. The learned trial court committed a patent error in directing the defendants 1 and 2 to begin first.
5. Countering the submissions of the learned Advocate for the petitioners, Mr.Behera, learned Advocate for the opposite parties submitted that right to begin is not the same as the adducing of evidence in support of a party's case. He further contended that the 3 plaintiff sought for partition alleging inter alia that the property is joint family property and not decided by metes and bounds. Since defendants 1 and 2 assert that item nos.2 and 4 of the suit schedule properties are their self-acquired properties, they shall begin first.
6. The seminal question that hinges for consideration before this Court as to whether the defendants shall begin first ?
7. Order 18 Rule 1 CPC, which is hub of the issue, is quoted hereunder:
"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 plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin."
8. In Balakrishna Kar and another Vrs. H.K.Mahatab, AIR 1954 Orissa 191, a Division Bench of this Court held that it should therefore be borne in mind that the right to begin is not the same as the adducing of evidence in support of a party's case. There is a distinction between the two.
9. In Purastam alias Purosottam Gaigouria and others (supra), the Division Bench of this Court in para-5 of the report held thus :
"5. 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, 4 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...."
10. On the anvil of the decisions cited supra, the instant case may be examined. The plaintiff has instituted the suit for partition of the suit schedule properties. The defendants 1 and 2 filed the written statement stating inter alia that item nos.2 and 4 of the suit schedule properties are their self-acquired properties. In view of the decision in the case of Purastam alias Purosottam Gaigouria and others (supra), the defendants shall begin first. Only when the defendants lead some evidence in proof of their case, the plaintiff shall be obliged to lead evidence in rebuttal.
11. In the wake of the aforesaid, the petition, being devoid of merit, is dismissed. No costs.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack The 26th July, 2017/CRB.