Gouri Food Products v. Priya Trading Co.

1. Heard Shri Lokhande, learned Advocate, holding for Mr. Rohit Deo, counsel for the applicant. None appears for the respondent.

2. The applicant has assailed the order, dated 8-8-1995, passed below Exh. 23 in Regular Civil Suit No. 850 of 1993, by the Third Joint Civil Judge (Junior Division), Nagpur, whereby the application moved by the plaintiff under Order 18, Civil Procedure Code, seeking a direction to the defendant to begin evidence first came to be rejected.

3. The learned counsel for the applicant states that the applicant is the plaintiff and has filed a Regular Civil Suit for recovery of money, i.e, amount of Rs. 24,608.91. It is the case of the plaintiff that the present respondent (defendant), vide agreement, dated 15-3-1992, accepted that an amount of Rs. 42,506.91 was due and payable by him and, in fact, pursuant to the said agreement, also paid an amount of Rs. 21,000.00. The plaintiff did not, however, receive the balance amount and hence was constrained to file the civil suit.

4. The counsel for the applicant further contended that the defendant in his Written Statement has admitted that an agreement, dated 15-3-1992, was executed, and also admitted that two instalments were paid pursuant to the said agreement. The defendant, however, alleges undue influence and coercion and, therefore, called in question the validity of the agreement. The learned counsel contended that since the defendant had alleged undue influence and coercion, the burden of proving the same lies on him, particularly when the defendant has admitted that the amount claimed by the plaintiff was, indeed, due and payable by the defendant in view of Issue Nos. 3 and 11 and, therefore, the plaintiff was justified in law to seek a direction from the court to the defendant to begin with the evidence.

5. The learned counsel for the applicant contended that the trial Court, without properly taking into consideration the provisions of Order 18, Rules 1 and 2 of the Civil Procedure Code, wrongly rejected the application of the applicant below Exh. 23 merely on the ground that the burden of establishing the agreement and entitlement to recover the amount on the basis of alleged agreement lies on plaintiff. It is submitted that the said order is, therefore, not sustainable in law.

6. In order to substantiate this contention, reliance is placed on the Judgment of the Gujarat High Court in Keshavlal Durlabhasinbhai's Firm v. Shri Jalaram Pulse Mills, AIR 1995 Gujrat 166.

7. Considered the contentions canvassed by the learned counsel. Perused the provisions of Order 18, Rules 1 and 2, Civil Procedure Code, as well as the judgment cited by the learned counsel. It would be appropriate to consider the purport of Order 18, Rules 1 and 2, Civil Procedure Code, before adjudicating on the merits of the matter. Order 18 deals with hearing of suits and examination of witnesses. Rule 1 deals with a right to begin, and contemplates that 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 and in such situation, the defendant has a right to begin. The plain reading of Rule 1 would show that the plaintiff, undoubtedly, has a right to adduce evidence first in the suit. However, in view of certain contingencies mentioned in Rule 1, the defendant gets right to begin, and is entitled to adduce evidence first in the suit. This is, undoubtedly, an enabling provision entitling the defendant of right to begin. However, nothing in this provision confers any power on the Court under this Rule to direct defendant to adduce evidence first in the suit if the defendant himself has not claimed such right in view of the contingencies mentioned in Rule 1.

8. It needs to be borne in mind that when the defendant denies the material facts constituting the cause of action, this is called pleading by traversal. When the defendant admits principal facts constituting the cause of action, but avers some additional facts on proof of which plaintiff would not be entitled to any relief, is called pleading by confession, and when the defendant puts forward a legal ground on which despite proof of the principal facts, the plaintiff would not be entitled to the relief sought, is called pleading by avoidance. In case of pleading by traversal, plaintiff is to begin. In case of pleading by confession and avoidance, the defendant would get a right to begin in view of provisions of Rule 1 of Order 18 of the Civil Procedure Code. However, the entire Rule 1 does not speak of a power to be exercised by the Court in this regard. Hence the defendant, in the abovereferred situation, can exercise his right to begin. However, I am afraid that under this Rule, Court may not be entitled to grant such relief if it is sought by the other side.

9. As far as Rule 3 of Order 18 of the Civil Procedure Code is concerned, it contemplates that where the burden of proving some of the issues lies on one of the parties, it is open to the party leading evidence to reserve his evidence by way of rebuttal to the evidence to be produced by the other party, and such party is required to intimate the court about reserving his right to adduce evidence in rebuttal thereof before opposite party starts evidence. Hence Rule 3 does not throw any light in respect of the issue in question and, in fact, is not attracted. Similar is the case in respect of other Sub-rules of Order 18 of the Civil Procedure Code, which do not deal with the issue involved in the present case.

10. In the instant case, the applicant moved an application under Order 18 of the Civil Procedure Code seeking to exercise power under Order 18, Rule 1 and direct the defendant to begin the evidence, since the defendant in his Written Statement has admitted execution of agreement and the payment of two instalments made to the applicant (plaintiff) pursuant to the said agreement. It is further contended by the plaintiff that since the defendant has stated in his Written Statement that he has executed agreement under undue influence and coercion, the burden of proving this fact lies on the defendant, since the other aspects are admitted by him and, therefore, it is contended by the plaintiff that the trial Court ought to have allowed the application under Order 18, Rule 1 of the Civil Procedure Code.

11. On the backdrop of the above referred legal position, vis-a-vis Order 18, Rule 1 of the Civil Procedure Code, it is evident that it only confers a right, in the contingencies referred to hereinabove, to begin, which is apparently an enabling provision entitling the defendant of right to begin, and does not confer any power on the court to direct the defendant to enter witness box and adduce evidence first in support of his claim before the plaintiff enters witness box. The contention advanced by the learned counsel for the applicant in this regard cannot be accepted. Similarly, as far as Order 18, Rule 2 of the Civil Procedure Code is concerned, the same is not attracted and does not help the cause of the applicant. The contention canvassed by the learned counsel for the applicant in this regard also needs to be rejected. The view taken by him is fortified by the Judgment of this Court in Haran Bidi Suppliers v. V.M and Company, Bhandara, reported in 2001 (4) Mh. L.J 112.

12. So far as the Judgment of the Gujarat High Court is concerned, the Hon'ble Judge has considered the aspect whether the court was entitled to record evidence of the parties before framing issues under Order 14, Rule 11, read with Order 10, Rule 2 of the Code of Civil Procedure. Though there are some passing observations of a general nature made in the Judgment in regard to Order 18 of the Code of Civil Procedure, however, the court did not specifically face with the situation as regards the power of the court, vis-a-vis Order 18 of the Civil Procedure Code. In the instant case, the issue involved, adjudicated upon and considered pertains to the purport of Order 18, Rules 1 and 2 of the Civil Procedure Code, interpretation of the same and consequence thereof, vis-a-vis power of the Court, which emerges from Order 18, and after due consideration in regard on these aspects, it can safely be concluded that Order 18, Rule 1 of the Civil Procedure Code confers right on the defendant in view of the contingencies mentioned therein, and entitles him to begin the evidence. However, the analogy cannot be stretched further in order to hold that it also confers power on the court to issue necessary directions in this regard. It, no doubt, sounds little harsh, however, in absence of a specific provision under Order 18 and its Sub-rules, it will not be proper to presume the existence of such power in the court. Such interpretation of Order 18 of the Code of Civil Procedure may not be valid. While dealing with the issue in question, this court has confined the debate/adjudication only in respect of purport of Order 18 of the Civil Procedure Code, and has not considered the inherent power of the court under section 151 of the Civil Procedure Code.

13. The suit, in question, is pending before the lower court since 1992 and, therefore, the trial Court is directed to dispose of the same as early as possible and in any case not beyond the period of one year from the date of receipt of this order.

14. For the reasons stated hereinabove, the Civil Revision Application is dismissed.

15. No order as to costs.

Revision application dismissed.