K.P Mohapatra, J.:— This revision is directed against the order passed by the learned Additional Munsif, Kendrapara, refusing the petitioners (defendants 2 to 4) to adduce evidence in Title Suit No. 194 of 1978.
2. Opposite parties 2 to 6 (Plaintiffs) instituted the suit for setting aside the sale deed in respect of the suit land executed by petitioner No. 1 in favour of opposite party No. 1 (defendant No. 1) on the ground that the sale deed was obtained by the latter by fraud and misrepresentation without payment of consideration to the former, an illiterate and purdanashin lady. The petitioners, in their written statement, supported the case of opposite parties 2 to 6, which makes opposite parties 2 to 6 being plaintiffs and the petitioners being defendants sail in the same boat. Opposite parties 2 to 6 closed their evidence by examining witnesses on 24-7-1984. The defendants were to commence their evidence on 25-7-1984. On that day opposite party No. 1, as well as, the petitioners filed their list of witnesses and were present in court. Opposite party No. 1 commenced his evidence which was closed on 1-8-1984. On that day the petitioners filed a petition to allow them to examine their witnesses to which there was opposition by opposite party No. 1. The matter was heard by the learned Additional Munsif who by the impugned order held that the petitioners should have led evidence before commencement of evidence of opposite party No. 1, because, they supported the case of opposite parties 2 to 6. In case they were permitted to lead evidence after close of evidence of opposite party No. 1, the latter would be seriously prejudiced in his defence, because, whatever materials he had obtained in his support by cross-examining the witnesses of opposite parties 2 to 6 and by examining the own witnesses would be destroyed.
3. The learned counsel appearing for the petitioners urged that the learned Additional Munsif should have called upon the petitioners to adduce evidence before he permitted opposite party No. 1 to lead his evidence. For the above reason it was not possible on the part of the petitioners to adduce evidence prior to the leading of evidence by opposite party No. 1.
4. According to the scheme of Rule 2, Order 18 of the Code of Civil Procedure (‘Code’ for short), on the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. Thereafter the other party shall state his case and produce his evidence, if any, and may then address the Court generally on the whole case. A further opportunity is given to the party beginning the case to reply generally on the whole case. According to this scheme, the plaintiff of a suit leads evidence on the day of hearing. After he closes his evidence, if there is one defendant he leads his evidence. If there are several defendants and they independently contest the suit, they lead evidence one after the other. But according to the rule of prudence there is an exception. The exception has been best illustrated by a decision reported in AIR 1964 Guj 26, Shah Hiralal Himatlal v. M.G Pathak. It was held by a learned single Judge that if any of the defendants supports the plaintiff in whole or in part, then he should address the Court and lead his evidence first before the other defendants who do not support wholly or in part the plaintiff's case. If all the defendants completely oppose the plaintiff's case, then the question of order of leading evidence amongst the defendants is immaterial. It is only when the defendants are divided into two groups, one group consisting of the defendants supporting the plaintiff's case in part and the other group consisting of defendants who do not support the plaintiff's case in any part, that the question of order of leading evidence becomes important. In such cases among defendants the order of leading evidence should be as follows:
(1) Those defendants who fully support the case of the plaintiff;
(2) Those defendants who partly support the case of the plaintiff;
(3) Those defendants who do not support the case of the plaintiff in any part.
5. As far as I am aware, the aforesaid principle is adhered to by the courts in this State. So, according to the above principle, when the petitioners supported the case of opposite parties 2 to 6 in the suit and they sailed in the same boat, they should have adduced evidence first in point of time before opposite party No. 1 adduced his evidence, so that the question of any prejudice being caused to the latter would have been completely excluded. In a case of this nature, the court cannot act as a passive agent. He is the master of the court proceedings and is to guide the trial of a suit by actively associating himself being fully aware of the pleadings of the parties, as well as, the nature of evidence that the parties are expected to adduce before him. If in a particular case of this nature, the counsel appearing for defendants colluding with the plaintiff or supporting the plaintiff's case, who are to lead evidence first in point of time before the actual contestant of the suit is ignorant of the provision of law or for some reason or other does not press and come forward to adduce evidence, it is in my view the duty of the court to point out and ask them to adduce evidence first in point of time. This view finds support from a decision of this Court reported in (1965) 31 Cut LT 871, Baidhar Behers v. Pranabandhu Maharatha, in which it was observed with reference to Order 18, Rule 2 of the Code that as a corollary, it must be determined by the Court as to which party has a right to begin. It may be that in point of time the determination of the question as to which party has the right to begin is slightly anterior to the actual leading of evidence. But the whole transaction is an integral part of the hearing.
6. Now, reverting to the case in hand, the counsel who represented opposite parties 2 to 6 at the trial did not make any effort to bring to the notice of the court that, because the petitioners supported their case, they should lead evidence before leading of evidence by opposite party No. 1. The counsel for opposite party No. 1 also did not point out that the petitioners should lead evidence first in point of time and thereafter he should lead evidence so as to avoid any prejudice being caused to him. It also appears from the order dated 25-7-1984 that the learned Additional Munsif who was supposed to be aware of the pleadings of the parties, particularly the fact that in the written statement the petitioners supported the case of opposite parties 2 to 6, did not direct them to lead evidence before leading of evidence by opposite party No. 1. It is also to be noted that this is a case in which a sale deed said to have been executed by an illiterate and purdanashin lady has been challenged on the ground of fraud, misrepresentation and non-passing of consideration. The illiterate and purdanashin lady (petitioner No. 1) is before the Court. In such circumstances, leading of evidence by her in ordinary course could not be refused. Now, the only safeguard that can be given to defendant No. 1 (opposite party No. 1) is that after close of evidence of the petitioners, a fresh opportunity should be given to opposite party No. 1 to adduce rebuttal evidence, if any, so that the possibility of any prejudice being caused to him can be safely excluded.
7. For the aforesaid reasons, the impugned order which is manifestly unjust cannot be supported. Therefore, it is vacated. The petitioners shall be permitted to adduce evidence and thereafter opposite party No. 1 shall be given another opportunity to adduce rebuttal evidence, if any. The petitioners shall pay a cost of Rs. 50/- to opposite party No. 1 before adducing evidence. The civil revision is accordingly allowed.
Revision allowed.