Madras High Court
P.Chidambaram vs Subburathinam on 24 July, 2023
C.R.P.(MD).No.204 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(PD)(MD)No.204 of 2019
and
C.M.P(MD) No.894 of 2019
P.Chidambaram
... Petitioner/Petitioner/Plaintiff
-vs-
Subburathinam ... Respondent/Respondent/7th Defendant
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the order, dated 19.11.2018 made in I.A.No.86
of 2018 in O.S.No.290 of 2012 on the file of the learned Additional
Subordinate Judge, Karur.
For Petitioner : Mr.N.Shanmugaselvam
For Respondent : Mr.M.P.Senthil
ORDER
The present Civil Revision Petition has been filed by the petitioner under Article 227 of the Constitution of India, against the order dated 1/11 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.204 of 2019 19.11.2018 made in I.A.No.86 of 2018 in O.S.No.290 of 2012 on the file of the learned Additional Subordinate Judge, Karur.
2. The revision petitioner is the petitioner before the trial Court and also the plaintiff. He has filed a suit for the relief of partition and for permanent injunction.
3. According to the plaint averments, the suit property was originally belonged to Ammaiyappa Gounder. The said Ammaiyappa Gounder had two sons, namely, Marappa Gounder and Periyanna Gounder. According to the plaint averments, Ammaiyappa Gounder died at about 60 years ago and his wife predeceased him. After the demise of Ammaiyappa Goundar, his two sons Marappa Goundar and Periyanna Goundar had been in possession and enjoyment of the suit “A” schedule property and other properties. Then, both of them have divided their ancestral joint family properties orally. In the said oral partition, the suit 'A' Schedule property has been allotted to Periyanna Goundar.
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4. According to the plaint averments, Periyanna Gounder had two wives, namely Sellammal and Pappayee Ammal. Sellammal had one daughter viz., Malaiyammal and the plaintiff, defendants 2 and 3 are her sons. The second defendant is the husband of the Malaiyammal. The second wife of Periyanna Gounder qua Pappayee Ammal had one son, by name, Ammaiyappan, and he has no issues and he predeceased Pappayee Ammal. Therefore, his wife Kalaivani has released her share in favour of Pappayee Ammal. The 7th defendant would contend before the trial Court that the said Pappayee Ammal has executed a registered Will in her favour in respect of the “A” schedule property.
5. In such circumstances, the plaintiff has filed an application under Order 18 Rule 1 of C.P.C, so as to compel the 7th defendant to let in evidence so as to prove her specific case of testamentary succession, that all the suit property belongs to him by virtue of a Will dated 29.09.2011. Therefore, an application filed to compel the 7th defendant to let in evidence before the trial Court, prior to plaintiff.
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6. However, the respondent filed a counter statement that the suit filed by the plaintiff is one for partition and that the defendants 1 to 6 in their written statement and his additional written statement, has not admitted any of the claims put forward by the plaintiff in the plaint and the reply statement. The 7th defendant also would submit that the issue of Will relied upon by this 7th defendant is one among the several grounds pleaded by him to resist the claim of the plaintiff. Therefore, he would submit that the very application is not maintainable.
7. The learned counsel for the respondent has also relied on the judgment of this Court reported in 2010 (6) CTC 225 (Bajaj Auto Ltd., vs. TVS Motor Company Ltd) and paragraph Nos.26 to 30 are extracted as follows:
“26. The provisions of Order 18, C.P.C. indicates the normal method of production of evidence and the arguments by either parties.
27. The term “right to begin” is not merely a right. It is rather a duty or legal obligation. It is so because the plaintiff has to win or lose the case on the basis of his own case and not on the weakness of the Defendant's case.4/11
https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.204 of 2019
28. Order 18, Rule 1, C.P.C is concerned not only with the production of evidence. It is a composite provision dealing with the right to begin a case in general. This includes the production of evidence as well as addressing the Court by oral arguments. Though Order 18, Rule 1, C.P.C provides in general about the right to begin, Rule 2 of Order 18 deals with opening the case and production of evidence. A combined reading of Rules 1 and 2 of Order 18, C.P.C. Would show that the person who got a right to begin must lead evidence first. As per the statutory scheme, the plaintiff is given the right to begin the case. This right would not give the Plaintiff a further right to compel the Defendant to produce his evidence at the fist instance. The question of Defendant beginning the case would arise only in cases wherein the Defendant admits the facts alleged in the plaint and contends that either on point of law or on some additional facts alleged by him, the Plaintiff is not entitled to any part of the relief which he seeks. It is only in such circumstances, the Defendant gets the right to begin. Therefore, the “right”, as defined in Rule 1 of Order 18 would not really be a “right” and is essentially a legal obligation to prove the case.
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29. There are exceptions to this Rule like the case relating to promissory notes. In a Suit on promissory notes, if the Defendant admits execution, the burden would shift to him to prove the discharge. Section 18 of the Negotiable Instruments Act provides that until the contrary is proved, the Court shall presume that every negotiable instrument or debt was made or drawn as shown in the document. In such cases, the burden is on the opposite party to lead evidence that the negotiable instrument was made without consideration.
30. hearing of the suit and the trial of the Suit are totally two different concepts. Trial would commence the very moment the Suit is instituted. “Trial of the Suit”, therefore, is a comprehensive term. The trial would commence after the filing of Suit and it would end with the disposal of the suit. The hearing of the Suit is part of the trial process. Hearing relates to examination of witnesses, their cross-examination as well as arguments by the Counsel. Therefore, hearing is a continuous process not confined to producing and recording evidence. It is therefore, essentially a composite process. The right to begin as mentioned in Rule 1 of Order 18, C.P.C has to be treated as opening the case, production of evidence followed by 6/11 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.204 of 2019 arguments. In normal course, the plaintiff has to open the case and he should lead evidence to begin with.”
8. He also relied another judgment of the Hon'ble Supreme Court reported in 2021 (4) LW 616 (Periyasamy vs. Soliammal), in paragraph No. 12, it is held as follows:
“12. On consideration of the facts and circumstances of the present case in the light of the principles laid down in the above decisions, it is seen that in this case, the plaintiff had filed the suit for partition. The revision petitioner/ defendant filed written statement claiming that his father left a Will in his favour and apart form that the revision petitioner/defendant also stated that the plaintiff is well aware of the Will executed by their father Nallappa Gounder and that after the demise of his father, the revision petitioner/ defendant made huge improvements in the suit properties, levelled the lands, made improvements, constructed a terraced house in the B schedule property, laid pipelines for more than 3000 feet, got new electricity connection by spending huge amounts, got the revenue records mutated and planted 500 coconut trees and the plaintiff is ousted from the suit property and the 7/11 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.204 of 2019 defendant has also become absolute owner by adverse possession and he had also purchased items 4 and 5 of the suit B schedule properties in his name and spent huge amounts towards improvements.”
9. From the reading of the above judgments, it would be amply clear that while considering the application under Order 18 Rule 1 of C.P.C., the Court has to consider the plaint and the written statement, in it's entirety. And as rightly submitted by the learned counsel for the respondent/7th defendant, the petitioner has not put forth the defence only upon the Will, and that he has also have the other defences, such as, the suit property is the absolute property of Pappayee Ammal. In addition to that, he would further plead that, he also perfected title over the property by adverse possession. Whereas it is the submission of the plaintiff that the suit property which is standing in the name of Pappayee Ammal is not her absolute property, as the property was purchased by her through the joint family income. Therefore, the plaintiff contend that the very execution of the Will by Pappayee Ammal is not at all maintainable.
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10. In such circumstances, as rightly submitted by the learned counsel for the respondent, the defence of Will is one among the defence which has been put forth by the defendant. Whenever an application is under consideration, the Court must conjointly read Order 18 Rule 1 of C.P.C along with Sections 101 and 102 of the Indian Evidence Act. As per Sections 101 and 102 of the Indian Evidence Act, the burden is upon the plaintiff to prove his case. Further, the plaintiff cannot take advantage of the weakness of the defendant's case.
11. The learned counsel for the petitioner would also submit that the order passed by the learned trial Judge is a non-speaking order and that the ruling submitted by the respondent is not applicable to the facts of the present case.
12. In this case, though the defendant has taken a defence of Will in respect of the certain property, that alone is not sufficient to compel the defendant to put forth the evidence prior to the plaintiff's evidence, as the plaintiff and the defendant are differing at various other grounds. Therefore, this Court is of the firm view that the findings of the trial Court in dismissing 9/11 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.204 of 2019 the application of the petitioner cannot be found fault with. Therefore, this Court could not find any grounds to interfere with the order passed by the learned trial Judge.
13. Thus, this Civil Revision Petition stands dismissed. However, considering the long pendency of the suit since 2012, this Court directs the learned trial Judge to dispose of the suit in O.S.No.290 of 2012 within a period of six months from the date of receipt of the copy of this order, and it is also made clear that both the parties to co-operate with the early disposal of the suit. There shall be no order as to costs. Consequently connected Miscellaneous Petition is closed.
24.07.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The Additional Subordinate Judge,
Karur.
10/11
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.204 of 2019
C.KUMARAPPAN,J.
ebsi
C.R.P(PD)(MD)No.204 of 2019
24.07.2023
11/11
https://www.mhc.tn.gov.in/judis