Madras High Court
Mrs. Bama vs Mrs. Rukiyal Bivi on 25 November, 2003
Equivalent citations: AIR2004MAD243, 2004(1)CTC109, (2004)1MLJ403, AIR 2004 MADRAS 243, (2004) 1 MAD LJ 403, (2004) 1 MAD LW 433, (2004) 2 CIVLJ 432, (2004) 2 CURCC 33, (2004) 16 ALLINDCAS 921 (MAD), (2004) 1 CTC 109 (MAD)
Author: A. Kulasekaran
Bench: A. Kulasekaran
ORDER A. Kulasekaran, J.
1. When the matter is listed today for admission, after hearing the learned counsel for the petitioner, the same is disposed of in limine.
2. Defendant is the petitioner herein. Respondent filed a suit in O.S.No.33 of 1999 on the file of the Sub-Court, Ambasamudram, for specific performance. The petitioner herein filed an application in I.A.No.465 of 2002, seeking for a direction, under Order 18 Rule 1 of C.P.C., to direct the respondent/plaintiff, to begin the case, on the ground that the suit is one seeking for specific performance and the agreement for sale entered into between them was obtained by coercion, without receiving the sale consideration of Rs.2.00 lakhs. The respondent herein has filed a counter, stating that the execution of the agreement has been admitted; a sum of Rs.2.00 lakhs was paid; the suit was filed even prior to the expiry of the time stipulated in the agreement and the balance consideration of Rs.1.00 lakh was also deposited; while so, the petitioner herein has to begin the case. The Court below dismissed the application. Hence, the present revision.
3. Under Order 10 Rule 1 of C.P.C., the Court can examine the parties concerned, in order to ascertain by statement of parties themselves or their pleaders whether the allegations in the pleadings were admitted or denied by them. Such ascertainment is to be made only when the allegations are not expressly or impliedly admitted or denied by the party against whom they are made.
4. The object of Rule 2 Order 10 C.P.C. is the examination, to ascertain the matters in dispute and not to take evidence or to ascertain what is to be the evidence in the case. The power under rule 2 Order 10 is intended to be used by the Judge only where he finds it necessary to obtain from a party the information on any material questions relating to the suit and ought not to be employed so as to supersede the ordinary procedure at trial, as prescribed in Order 18.
5. Order 18 Rule 1 of C.P.C. reads thus :
"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."
6. As a general rule, the plaintiff has to prove his claim by positive proof, but the Court has to see whether there is a proof of claim before it need enquire to the truth or otherwise of the defence. It is open to the plaintiff to say that although he has right to begin, he may rest content with relying upon the averments made in the written statement and may say that he does not propose to adduce further evidence. If the defendant admits material allegations in the plaint, the defendant may begin. However, the plaintiff must prima facie satisfy that there are reasons to believe that particular thing is within the knowledge of the defendant. If the denial by the defendant is without substance in view of the other admitted facts, the onus lies on the defendant and he must be directed to lead the evidence first.
7. Under Section 102 of the Indian Evidence Act, the burden of proof rests on the party, who would fail, if no evidence at all were given on either side. When a person seeks aid of a Court of equity to enable him to get rid of the effect of deeds which he has executed, the burden of proof is on him to make out a case, such as imposition or any other reason for such intervention.
8. In this case, it is seen from the written statement, in para 5, it is stated that the signature was obtained in the agreement for sale on 06.05.1998 by coercion. In para 6, it is mentioned that on 27.03.1999, an advertisement was made by the respondent/plaintiff in 'Daily Thanthi', Tamil newspaper, and after seeing that, the petitioner herein approached him and made certain payments.
9. Arguments are also advanced that, in a suit for specific performance and in alternative for return of earnest money, the onus lies on the plaintiff to prove his case and, as such, the trial Court ought to have directed the respondent herein to lead the evidence, but, on the contrary, it directed the petitioner/defendant to begin the case.
10. Section 16(c) of the Specific Relief Act contemplates that specific performance of contract cannot be enforced in favour of a person, who fails to aver and prove that has performed or has always been ready and willing to perform the essential terms of the contract, which are to be performed by him, other than terms of the performance, of which he has been prevented or waived by the defendant.
11. The doctrine of 'readiness and willingness to perform' means, the word 'readiness' implies that the plaintiff has money at his disposal to pay the sale consideration and the word 'willingness' implies that he is inclined to do that was required.
12. Under Section 102 of the Indian Evidence Act, the burden of proof rests on the party, who would fail, if no evidence at all were given on either side.
13. In a case where the execution of document is admitted, a presumption was raised in favour of the plaintiff that the said document was made for consideration and the presumption was raised, it had the effect of shifting the burden on to the defendant, to establish that there was no consideration.
14. The trial Court found that the suit was filed even before the expiry of the time stipulated in the agreement and that the balance sale consideration of Rs.1.00 lakh was also deposited into the Court.
15. Considering all the above said facts, the trial Court has rightly come to the conclusion and dismissed the application. Therefore, I do not find any reason to interfere with the order passed by the Court below.
16. Civil Revision Petition is dismissed. No costs. Consequently, the connected C.M.P.is also dismissed. It is made clear that what are all stated above shall not be taken into account by the trial Court, while deciding the case on merits.