Case Title: Smt. Poonam Bhanot V. Virender Sharma & Ors.
According to the Delhi High Court, the Court has the power to issue the required instructions under Order 18 Rule 1 CPC on the procedural matter deciding which side would present evidence first. The bench said that correcting a procedural order was a power that belonged to the court and might be done ex debito justitiae to stop misuse of the system. Justice Mini Pushkarna, said:
"The unequivocal position that emerges is that if the defendants set up a case, which if decided, would decide the issues raised in the suit completely, then the defendants can be directed to lead evidence first under Order 18 Rule 1 CPC."
The court also rejected the defendant's argument that the plaintiff's testimony should be heard first because there hasn't been an appeal against that order becoming final. It noticed,
"The directions regarding filing a list of witnesses and evidence by way of an affidavit is in the nature of a procedural order...Correction of a procedural order is an inherent power and may be corrected ex debito justitiae to prevent the abuse of its process."
The case involves a property dispute between siblings after their father's passing. The plaintiff said that the individuals involved in the lawsuit, all the deceased's lawful heirs, were co-owners of his assets. However, defendant 1, the plaintiff's brother, claimed that their father had bequeathed him exclusive possession of his home and a business unit in an unregistered will that had been drafted by the parties. Defendants 2 and 3 agreed with the plaintiff's argument (who were both sisters of the parties). The plaintiff requested that defendants 2 and 3 be called upon to lead their evidence first when submitting the current application in accordance with Order 18 Rule 1 CPC. The allegation made by the plaintiff in the lawsuit had not been acknowledged by the defendant in his written statement, according to defendant 1, who opposed the motion. Therefore, it was the plaintiff's responsibility to prove her case. Additionally, it was argued that the plaintiff needed to be questioned first in order to present her case, hence the defendant no. 2 and 3 could not be permitted to start recording the evidence before the plaintiff.
The Defence attorneys for defendants 2, 3, and 4 had backed the plaintiff's application. He argued that Order 18 Rule 1 CPC does not limit the Court's authority in this matter and that the Court may dictate who begins the testimony. He also argued that because every claimant in a partition lawsuit was also a plaintiff, there could be no precise separation between plaintiffs and defendants. The court observed that defendant no. 1 did not contest the existence of a will that was legally recorded on September 5, 2014, and by which all the parties—including the plaintiff in this case—were left interested in the assets that their father owned. The first defendant claimed in his written statement that their father's previous, registered will, dated 05.09.2014, was cancelled by a later, unregistered will, dated 12.07.2016, by which he had left the properties in Model Town and Gurgaon to him.
The plaintiff also received certain shares from the properties that are the subject of the current lawsuit's partition, according to a registered will dated September 5, 2014, that, according to defendant number 2 through 4, is the last Will made by the parties' father, though defendant number 1 claims it had been revoked. Taking all these facts into consideration, the Court declared that the defendants have established a case, if successful, would resolve the questions brought in the actual lawsuit.
The court considered the ruling in Achala Mohan v. Jayashree Singh, which said that if a defendant asserts a claim, the proving of which would conclusively resolve all of the problems brought in the lawsuit itself, the defendant may be ordered to present evidence first under Order XVIII Rule 1 CPC.
The first defendant claimed that the plaintiff had been ordered to present her evidence first by the court in its 2019 order. In addition, he said that because there had been no appeals against the ruling, it had become final. The court in this case observed that the instructions regarding the submission of a list of witnesses and supporting documentation through affidavit were in the form of a procedural order. The calling and attendance of witnesses, which are procedural in nature, are also covered by Order 16 CPC. The court concluded that Order 18 Rule 1 CPC gave it the jurisdiction to make the required rulings regarding the procedural matter deciding which side will start the evidence.
The court concluded; this was a situation where the defendants should present their case first. It was therefore ordered that defendants 2 to 4 lead their testimony first, followed by the evidence of defendant number 1.