Plaintiff Has Right To Begin By Leading Evidence; Only Exception Is When Defendant Contends That Plaintiff Is Not Entitled To Any Part Of Relief: Karnataka High Court

The writ petition before the High Court was filed under Article 227 of the Constitution, by the defendant with a prayer to set aside the order passed by the Court of Principal Senior Civil Judge and CJM, Mangaluru, D.K., on the memo filed on behalf of the plaintiffs.

The Single Bench of Justice S Vishwajith Shetty held, “ A reading of Order XVIII Rule 1 would go to show that the said Rule recognizes that ordinarily it is the plaintiff who has a right to begin by leading his evidence and the only exception would be where 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, that the plaintiff is not entitled to any part of the relief which he seeks. In such a case, the defendant has right to begin.”

Advocate K. Ravishankar represented the Petitioner, while Advocate Sandesh Shetty T represented the Respondent.

Factual Background

The plaintiffs had filed an application before the jurisdictional Civil Court against the petitioner seeking the relief of partition and separate possession of the suit schedule 'A' property and to allot 1/5th share each in the suit schedule 'A' property. The petitioner/defendant had opposed the suit claim by filing a detailed written statement, and it was contended that the father of the plaintiffs and defendant had executed a will bequeathing a certain part in his favour. In the said suit, a memo was filed on behalf of the plaintiffs reserving their right to lead rebuttal evidence. The same was opposed by the defendant by filing objections. The trial Court, vide the order impugned, had taken the evidence of the plaintiffs as 'nil' for the time being, subject to their right to lead rebuttal evidence, and called upon the defendant to lead evidence. Being aggrieved, the petitioner/defendant, approached the High Court.

Reasoning

The Bench, at the outset, explained that Order XVIII provides for the hearing of the suit and examination of witnesses. Rule 1 of Order XVIII provides for the right to begin with the examination of the witness and Rule 3 provides for the procedure to produce when there are several issues. “A reading of Order XVIII Rule 1 would go to show that the said Rule recognizes that ordinarily it is the plaintiff who has a right to begin by leading his evidence and the only exception would be where 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, that the plaintiff is not entitled to any part of the relief which he seeks. In such a case, the defendant has right to begin”, it added.

The Bench concurred with the view given in Bhagirath Shankar Somani v. Rameshchandra Daulal Soni (2007) wherein it has been held that the Court has no power to issue a direction to the defendant compelling him to lead his evidence before the plaintiff adduces his evidence. Only when the defendant claims the right to begin under Rule 1 and the plaintiff disputes the existence of such a right, the Court will have to decide the question of whether the defendant has acquired a right to begin.

The Bench noted that in a case which falls under Rule 1 Order XVIII CPC, it is for the plaintiff to lead his evidence first. It also enables the defendant to exercise his right subject to the contingency mentioned in the Rule. In a case where the plaintiff intends to reserve his right to lead evidence in rebuttal after the defendant leads his evidence, he can always make such a request to the Court, but then it is for the defendant to decide whether he wants to begin with the evidence. “When there are several issues in a case, in respect to the issue where the burden is on the defendant to prove, the plaintiff can exercise the option as provided under Rule 1. However, in respect to the other issues the right to lead the evidence is always on the plaintiff”, it added.

Cause Title: Deenanath v. Chandrahas (Neutral Citation: 2025:KHC:41760)

Appearance

Petitioner: Advocate K. Ravishankar

Respondent: Advocate Sandesh Shetty

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