Delhi High Court
Sabiha Sultana & Ors. vs Ahmad Aziz & Anr. on 31 August, 2017
Author: Najmi Waziri
Bench: Najmi Waziri
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 31.08.2017
+ CS(OS) 2958/2011
SABIHA SULTANA & ORS. ......Plaintiffs
Through: Mr. Aly Mirza, Adv.
Versus
AHMAD AZIZ & ANR. ....Defendants
Through: Mr. Arvind Bhatt and Mr. Kuber Giri,
Advs. for Defendant No. 2 with
Defendant No. 2 in person
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
IA No. 12353/2015 (by plaintiffs for direction to D-1)
1. This application seeks inter alia a direction for defendant No. 1 to lead his evidence first instead of the plaintiff doing so.
2. After the issues in the suit were drawn up, the Court had directed the parties to file their respective list of witnesses. The plaintiffs were to file the affidavit of evidence in four weeks thereafter. The defendants also had to file their evidence in a similar subsequent duration. The plaintiffs thereafter were to complete their evidence in two months in not more than six sittings and thereafter the defendants were to complete their evidence in a similar duration. Now, the applicants/plaintiffs state that the nature of the case being such that it is imperative that the defendants should lead their evidence first.
CS(OS) 2958/2011 Page 1 of 11The learned counsel for the applicants premises his contention on the ground that the documents on the basis of which the defendants base their claim of right and absolute interest in the suit property namely property i.e. D-13, Hazrat Nizamuddin West, New Delhi; F-81, Okhla Industrial Estate, Phase- III; Plot/Factory No. A-34, Functional Industrial Estate, Okhla Industrial Area, Phase-II, New Delhi are suspect, especially in view of the latter's pleadings. The learned counsel contends that the documents filed and the defense set up by the defendant No.1 are replete with inherent contradictions hence, it would only be fair and logical that the defendant lead evidence apropos what is his defense regarding the challenge to the said documents by the plaintiffs.
3. Referring to the issues framed, Mr. Aly Mirza, the learned counsel for the plaintiffs, submits that issues 1 to 4, 7 and 10, for which the burden of proof is on the defendant, have to be examined first because they go to the root of the lis between the parties. He contends that the documents, which form the basis of the defendant's claim, are by the defendant's own pleadings, said to be preceded by an alleged "desire, understanding and a consensus within the family". Therefore, this substratum for the documents would have to be first borne out from the defendants' evidence. If the defendant fails to discharge this burden of proof, the alleged titular documents relied upon by the defendant would be of no consequence. The learned counsel further submits that the two deeds of Hiba-bil-Iwaz (gift- cum-sale deed) both dated 26.06.2009 apropos House No. D-13, Nizamuddin West, New Delhi and property bearing No. F-81, Okhla Industrial Estate, New Delhi, have been obtained by fraud and are, therefore, CS(OS) 2958/2011 Page 2 of 11 liable to be ignored. He contends that the aforesaid two deeds are the last in series of documents, as claimed by the defendant No.1 to have been executed in his favour, which vest in him the sole interest in the aforesaid properties. Therefore, in the first instance, before the defendant No. 1 can rely upon the gift-cum-sale deed of 26.06.2009, defendant no.1 would have to prove the documents allegedly executed prior in time, such as (i) the affidavit dated 9.7.2003 (as in Issue No. 7); (ii) Deed of Disclaimer dated 1.8.2003 as claimed to have been executed by plaintiff nos. 1 to 4 and 7 without misrepresentation by defendant No. 1 and other related issues, and
(iii) whether the Wills executed on 30.07.2001 between the parents were "in consonance with the desire, understanding and consensus in the family" as cast in Issues Nos. 2, 3 & 4. The learned counsel argues that unless the bonafide and truth of the documents preceding the final deed i.e. the Hiba- bil-Iwaz is first proven, the said deeds would be suspect. Therefore, evidence apropos issue nos. 1 to 4 7 & 10 ought to be led first because this evidence of the defendant, to a large extent, would determine whether the two deeds dated 26.06.2009 were obtained by fraud (Issues Nos. 5 & 6).
4. Mr. Arvind Bhatt, the learned counsel appearing on behalf of defendant No. 2 refutes the aforesaid contentions by submitting that the order of 19.03.2015 directing the parties to file their respective list of witnesses within 15 days and to exchange the same between themselves was accepted by the plaintiffs inasmuch as they had filed their list of witnesses within two weeks i.e. on 04.04.2015. But, on 13.04.2015, the plaintiffs moved an application seeking to shift the burden of proving some of the CS(OS) 2958/2011 Page 3 of 11 framed issues upon the defendants. This application was disposed off on 20.04.2015.
5. When the case was listed before the Registrar on 28.04.2015, the applicants sought and were granted four weeks time to file affidavits of their witnesses. This period got over on 26.05.2015. However, instead of honouring their own request, the plaintiffs filed two applications, being IA Nos.12357 and 12353 of 2015; the first seeking to amend their replication and the latter being this application seeking directions that the defendants lead evidence first. The former application was dismissed on 22.03.2017.
6. The learned counsel further contends that the order of 19.03.2017 fixing the sequence of evidence to be first led by the plaintiffs and then by the defendants was reiterated by this Court on 20.04.2017. Indeed this sequence was adhered to by the applicants, but now belatedly, they seek modification of the same by raising untenable arguments. He further contends that the scheme of recording of evidence under the Code of Civil Procedure is contained in Order VIII Rule 1 CPC, which reads as follows:-
"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 plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin."CS(OS) 2958/2011 Page 4 of 11
7. He relies upon the ratio of the following judgments:-
(i) Dattatray Namdeo Patil Vs. Ram Namdeo Patil and Ors.
2010 (4) AIR Bom R 345, wherein the High Court of Bombay observed:-
"3. Admittedly, no such Application to begin the evidence was filed by the petitioner/defendant No. 4. The Application was filed by the plaintiff. In the Suit, the defendants admit that the suit property is an ancestral property; and the plaintiff was separated from 1979; and he is not entitled for partition and the reliefs. This cannot be treated as admitted facts by overlooking the whole pleading of the parties. This itself is not sufficient to grant such application of the plaintiffs. The Court cannot compel and/or direct the defendants to lead evidence first. Rules 1 & 2 of Order XVIII of C PC entitle the defendant, who admits the facts, to begin the case first. It is an enabling provision. It is not mandatory. Such defendant, if apply and make such request and/or claim such right, the Court may pass such order. The Court cannot direct the defendant to begin the case in such fashion.
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5. The right of the defendant to begin the case cannot be treated as right of the plaintiff's to insist/compel such defendant to begin first. The learned Judge needs to consider overall view of the matter read with the provisions so referred above while passing such order, before compelling the defendant to begin the case or lead evidence first. In view of above facts, I am not dealing with the aspects of specific pleas/defence and respective burden of proof. The order so passed by the trial Court, in the present facts and circumstances of the case, is quashed and set aside. In the result, the Application filed by the plaintiff is CS(OS) 2958/2011 Page 5 of 11 rejected. The Court to proceed with the matter in accordance with law. The Petition is allowed in terms of prayer (a) and Rule made absolute accordingly. No order as to costs."
(ii) Haran Bidi Suppliers and Anr. Vs. V.M. and Co., through Ambubhai s/o Jivrajbhai Seth 2001 (2) Bom CR 209, which held that:-
"Only question involved in this revision application is whether the trial Court was right in directing the defendants to enter the witness-box in the first instance, by the impugned order dated 28th February, 1996. The order is very short which reads thus:
"Heard Shri Hundra for defendants, Shri Bhadu Pote for plaintiff.
There are about 14 issues. Only Issue No. 4 casts burden on the plaintiff. It is the case of the defendant in view of certain arrangements they are utilizing the trade mark of the plaintiff. Considering the onus, I direct the defendants to enter in the witness box and plaintiff would be rebutting. Application is allowed."
The only reason indicated in the said order is that burden is cast on the plaintiff to prove only four issues out of total 14 issues and, therefore, the defendants have been directed to enter the witness-box. According to the non-applicant/plaintiff, the said order was in terms of Order 18, Rule 1. Order 18, Rule 1 reads thus:
"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."CS(OS) 2958/2011 Page 6 of 11
On the plain language of the said provision, it would appear that it is only an enabling provision entitling the defendant of right to begin. In my view, this provision cannot to interpreted to mean that the Court would be competent to direct the defendant to enter the witness-box before the plaintiff and lead evidence in support of its case. In the circumstances, the impugned order passed by the trial Court cannot be sustained in law."
(iii) C.R.P. (PD) No. 2853/2007 decided on 12.02.2009, titled: K. Shanmugha Gandhi Vs.K. Venugopal and Ors. wherein the High Court of Madras observed:-
"6. The bare perusal of Sections 101 and 102 of the Indian Evidence Act would clearly indicate and spot light that the burden of proof is on the plaintiff to prove the case. As per Order 18 Rule 1 of C.P.C. the plaintiff alone should commence the trial; however, there is an indication in the said provision that if 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, then only the defendant has the right to begin."
(iv) Mohammad Jahangir @ Mohamad Jahagir Alam Vs. Sajda Khatoon & Ors., 2007 (4) PLJR 100, which held:
"4. The general rule as to plead and prove is that one who pleads must prove. The exception being where the pleading of one is admitted by the adversary. In such an event, the person pleading the fact is relieved of his obligation to prove the pleading as it is admitted. The rational of Order XVIII Rule 1 is based on these two principles put together. It is to be seen that CS(OS) 2958/2011 Page 7 of 11 once the defendant admits the facts as pleaded by the plaintiff then the plaintiff is relieved of proving his case. The obligation would then normally travel to the defendant to plead his case first. The requirement of Order XVIII Rule 1 is first that there should be an admission of facts by the defendant as pleaded by the plaintiff which facts in spite of admission would not entitle the plaintiff to any relief or would disentitle the plaintiff to any relief on a separate set of facts pleaded by the defendant. Primarily, there has to be first admission of facts by defendant. Secondly, it would be seen that this provision only gives a right to the defendant to begin whether he exercises that right or not the option is his. If Order XVIII Rule 1 made it obligatory on part of the defendant to begin then the section would be worded otherwise. The section is only conferring a right on the defendant but does not make it obligatory, for if it was to operate as an obligatory responsibility then it can simply be drafted as "defendant shall proceed" and not "that the defendant has the right to begin". The words would be "that the defendant had the duty to begin".
(v) Ramakanta Patnaik and Ors. Vs. Suresh Chandra Sahoo and Ors., 121(2016)CLT675, which observed that:-
"4. From reading of the plaint averments particularly in paragraph Nos. 11 & 14 and the response of the defendant in paragraph Nos. 14 & 17 in the written statement, it appears that there is clear denial by the defendant to the allegation of managing to get into the sale deed by the plaintiff. Coming back to the provisions at Order-18, Rule-1 & 3 of the C.P.C. The same reads as follows:
"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 CS(OS) 2958/2011 Page 8 of 11 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.
3. Evidence where several issues : Where 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, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case."
5. From the pleadings as narrated hereinabove and from reading of the provisions as contained in Order 18, Rules 1 & 3 of the C.P.C, this Court is of the view that in view of the specific denial by the opposite party, the petitioners were duty bound to begin first.
6. Now coming to the decisions as relied upon by the opposite party in a case in between "Mirza Niamat Baig and Another v. Sk. Abdul Sayeed and Others", and as reported in 2008 (II) OLR 566 this Court considering the applicability of Order 18, Rule-1 has come to hold as follows:
"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 CS(OS) 2958/2011 Page 9 of 11 "unless the defendant admits the facts alleged" occurring in Order 18, Rule 1, C.P.C., the word. "facts" means all the materials facts. Thus, where a defendant admits only some of the facts alleged by the plaintiff, there the plaintiff should begin."
Similarly, in an another decision as rendered by this Court in a case in between Jayaram Sahoo @ Behera v. Banamali Sahoo and others and as reported in 2012 (II) OLR 681, this Court referring to the aforesaid decision in paragraph 10 held as follows:
"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 PC providing that the defendant should begin the evidence first would be applicable, otherwise, the general principle as envisaged under Order 18, Rule 1 CPC shall be followed."
7. In view of the findings on the factual position and the observations on the legal position involved in the matter, this Court finds that the Trial Court has rightly attended the issue and very correctly arrived at the conclusion that the plaintiffs- petitioners failed in establishing their case bringing the provisions under Order-18, Rules 1 & 3 and thus has rightly rejected the application."
8. In terms of the procedure stipulated in CPC and the aforesaid precedents, it is clear that as a general rule the party which set up a claim must prove the burden cast upon it. The plaintiff has a right to begin and so he must because the burden of proof rests upon one who pleads. It is for the plaintiff to lead evidence first. It is only when the defendant admits to the CS(OS) 2958/2011 Page 10 of 11 facts pleaded by the plaintiff that the latter would be relieved of this burden, but in the absence of any such admission, asking the defendant to lead evidence first could well be disadvantageous to the defendant. Order 18 Rule 1 of CPC prescribes "right to begin" the recording of evidence wherein the plaintiff would lead evidence first but the defendant may be permitted to lead evidence if after having admitted to the facts pleaded by the plaintiff, he so seeks to do. In the absence of these two qualifying circumstances, the Court would not direct the defendant to lead evidence first.
9. In the present case the defendants have not admitted to the facts pleaded by the plaintiffs, accordingly, the latter would be required to lead evidence as directed in the order dated 19.03.2015 and 20.04.2015. There is no merit in the application, accordingly, it is dismissed.
NAJMI WAZIRI, J.
AUGUST 31, 2017 sb CS(OS) 2958/2011 Page 11 of 11