2007(6) ALL MR 654
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
A.B. CHAUDHARI, J.
Bhartiya Adim Jati Sevak Sangh & Ors.Vs. Mahesh S/O. Vallabhdas Magia & Anr.
Writ Petition No.1553 of 2007
23rd August, 2007
Petitioner Counsel: Shri. M. N. BELEKAR
Respondent Counsel: Shri. S. I. KHAN
Civil P.C. (1908), O.18, Rr.1, 2 - Hearing of suit - Pleadings - Application for leading evidence first by defendant - Rejection - Validity - In absence of any provision to compel respondent / defendant to enter witness box first - Order rejecting application of respondent to lead evidence was proper. 2002(4) Mh.L.J. 880 and 2001(1) ALL MR 173 - Rel. (Para 5)
Gouri Food Products, Nagpur Vs. Priya Trading Co., Nagpur, 2002(4) Mh.L.J. 880 [Para 4]
Haran Bidi Suppliers Vs. M/s. V. M. & Co., Bhandara, 2001(1) ALL MR 173=2001(4) Mh.L.J. 112 [Para 4]
2. Being aggrieved by order dated 31-1-2007 passed by the 5th Jt. Civil Judge (S.D.), Nagpur in Special Civil Suit No.512/2001, rejecting application (Exh.18), the present writ petition has been filed.
3. Advocate Shri. Belekar for petitioners argued that the petitioners filed a civil suit for recovery of unpaid amount of Rs.61,750/- from respondent No.1/original defendant, who was managing the financial affairs of petitioner No.1 - Trust and who had not given the accounts deficit of the said amount. After filing of the suit, the respondent No.1/original defendant in his written statement averred that he had accounted for the said amount of Rs.61,750/- and the same was duly deposited with the Trust. Advocate Shri. Belekar for petitioners then submitted that in view of this pleading and the additional issue that was framed accordingly, he filed application (Exh.18) under Order 18, Rule 3 of the Code of Civil Procedure for directing/asking the respondent/defendant to lead his evidence first on the said additional issue and then to allow the petitioners/plaintiffs to lead evidence in rebuttal.
4. Per contra Advocate Shri. S. I. Khan for respondent No.1 vehemently opposed the writ petition and submitted that there is no provision whereby the plaintiffs can compel the respondent/defendant to enter into witness box first. He further submitted that no power is vested with the lower Court to do so. In support of his submissions he relied upon the following decisions of this Court.
(1) Gouri Food Products, Nagpur Vs. Priya Trading Co., Nagpur reported in 2002(4) Mh.L.J. 880.
(2) Haran Bidi Suppliers and another Vs. M/s. V.M. & Co., Bhandara, reported in 2001(4) Mh.L.J. 112.
"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."
In the case of Haran Bidi Suppliers, this Court in paragraph No.1 has held as under ;
"On the plain language of the said provisions, it would appear that it is only an enabling provision entitling the defendant of right to begin. In my view, this provision cannot be interpreted to mean that the Court would be competent to direct the defendant to enter the witness-box before the plaintiff and lead evidence in support of its case. In the circumstances, the impugned order passed by the trial Court cannot be sustained-in-law."