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Synopsis

The Supreme Court has said that it is not obligatory for the court to ask the plaintiff to begin the evidence first in a suit, as there can be no watertight compartmentalisation in matters of justice and all rules of procedure are designed and directed to achieve and secure ends of justice.

A bench of Justices J B Pardiwala and R Mahadevan said under Section 102 of the Evidence Act, the burden of proof rests on the party who would fail if no evidence at all were given on either side.

"Where the defendant admits the facts alleged by the plaintiff but contends that the plaintiff is not entitled to any part of the relief which he seeks, it is the defendant who gets the right to begin," the court said.

The court pointed out that Order XVIII of the Code of Civil Procedure in terms speaks of the ‘hearing’ of a suit and not the trial of the suit.

"A court is concerned with the trial of a suit from the time when it is instituted. The hearing of a suit is only a part of the trial of the suit. The determination of the question as to which party has a right to begin is an integral part of the hearing itself," the bench said.

The court also pointed out that Order XVIII Rule 1 indeed provides for the plaintiff's right to begin the evidence but not the court's obligation to ask the plaintiffs to begin first.

"There is no impediment for the court to call upon either party to lead evidence first, depending upon the facts and circumstances of the case and the nature of the issues framed. Neither party can insist that the other one should be asked to lead it first. It all depends upon what the court deems proper in the circumstances. Where it finds that defendant's plea strikes of the root of the case, there would be no hitch in asking him/her to prove such plea first which can lead to disposal of the case. There can be no watertight compartmentalisation in matters of justice and all rules of procedure are designed and directed to achieve and secure ends of justice," the bench said.

The court upheld the Orissa High Court's judgment of September 23, 2024, which rejected the petition filed by the petitioners Jami Venkata Suryaprabha and another who sought to challenge the order passed by the Civil Judge (Senior Division), Paralakhemundi.

The Civil Judge also rejected the application filed by the petitioners in the capacity of being a plaintiff under Order XVIII Rule 1 of the Civil Procedure Code, 1908.

The petitioners had instituted a suit for specific performance of contract based on an agreement of sale of September 1, 2019, said to have been executed by the respondents (defendants) in their favour.

Referring to the written statement, the petitioners as plaintiffs preferred an application before the trial court under Order XVIII Rule 1 of the Civil Procedure Code, 1908 with a prayer that as the defendants were not disputing the agreement of sale, the defendant should be asked to begin to lead oral evidence.

The trial court rejected the application. The petitioners being dissatisfied with the order passed by the trial court, rejecting such application invoked the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India. The High Court also declined to interfere.

According to Order XVIII Rule 1 of the CPC, “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".

The bench pointed out that as a general rule, according to the procedural law, no doubt it is the plaintiff who has to prove his claim by positive proof, for the court has to see whether there is a proof of claim before it needs to enquire, as to the truth or otherwise of the defence.

"It is open to the plaintiff to say that although he has the right to begin, yet he may rest content with relying upon the averments made in the written statement. Yet evidence need not always be led by the party who has the right to begin and on whom lies the burden of proof; it is open to him to sustain the onus by facts which he may elicit in cross examination of the other party or his witnesses," the bench, however, said.

In order to come to the conclusion, concerning on whom the legal burden of proof rests, in addition to the substantive law, the pleadings of the parties coupled with documents that they produced and the admissions, if any concerning such documents have to be taken into account, the bench added.

The court noted the High Court looked into the plaint and written statement and came to the conclusion that although the defendants had admitted the existence of a document called 'agreement for sale', but they had specifically stated that it was a sham transaction and pleadings in the written statement clearly showed that they had never agreed to sell the property. Of course, they have accepted certain amount which they agreed to refund, the bench stressed.

This fact does not ipso facto be construed to be admission of material facts alleged in the plaint as the defendants have categorically denied that in the written statement they have never agreed to sell the property, it noted.

After going through the legal position, the apex court said, "The High Court seems to have taken the view and, in our opinion, rightly that although the defence has admitted the existence of a document that is 'agreement of sale', yet they have specifically said that the same is a sham transaction."

The High Court is right in saying that the averments made in the written statement sought to be relied upon by the plaintiff does not ipso facto be construed to be admission of materials facts in the alleged plaint, the bench held.

The court dismissed the special leave petition finding no reason to interfere with the High Court's judgment.

Case Title: Jami Venkata Suryaprabha & Anr Vs Tarini Prasad Nayak & Ors