JAMI VENKATA SURYAPRABHA & ANR.versusTARINI PRASAD NAYAK & ORS.

         [2024] 12 S.C.R. 646 : 2024 INSC 1001

            Jami Venkata Suryaprabha & Anr.
                            v.
               Tarini Prasad Nayak & Ors.
      (Special Leave Petition (Civil) No. 29045 of 2024)
                        09 December 2024
        [J.B. Pardiwala and R. Mahadevan, JJ.]


                      Issue for Consideration
Issue arose as regards the right of plaintiff to ask the defendant
to lead the evidence.

                             Headnotes†
Code of Civil Procedure, 1908 – Ord. XVIII r.1 – Hearing of suit
and examination of witnesses – Right to begin – Defendants
be asked to lead the oral evidence – When:
Held: Ord. XVIII speaks of the ‘hearing’ of a suit which is only a
part of the trial of the suit – Determination of the question as to
which party has a right to begin is an integral part of the hearing
itself – Ord. XVIII r. 1 indeed provides for plaintiff's right to begin
the evidence but not the court's obligation to ask the plaintiffs to
begin first – No impediment for the court to call upon either party
to lead evidence first, depending upon the facts and circumstances
of the case and the nature of the issues framed – Neither party can
insist that the other one should be asked to lead it first – Where
the court finds that defendant's plea strikes at the root of the case,
no hitch in asking him/her to prove such plea first which can lead
to disposal of the case – All rules of procedure are designed and
directed to achieve and secure ends of justice – On facts, the trial
court rejected the application filed by the petitioners u/Ord. XVIII r. 1
that as defendants are not disputing the agreement of sale, the
defendant be asked to begin to lead oral evidence, and the High
Court also declined to interfere – High Court rightly held that
although the defence has admitted the existence of a document-
“agreement of sale”, yet they have specifically said that the same
is a sham transaction – Averments made in the written statement
sought to be relied upon by the plaintiff does not ipso facto be
construed to be admission of materials facts in the alleged plaint –
Thus, no reason to interfere with the impugned order passed by
the High Court. [Paras 5, 7, 17-19]
[2024] 12 S.C.R.                                                          647

 Jami Venkata Suryaprabha and Anr. v. Tarini Prasad Nayak and Ors.


                                 List of Acts
     Code of Civil Procedure, 1908.

                             List of Keywords
     Right of plaintiff to ask defendant to lead the evidence; Hearing
     of suit and examination of witnesses; Right to begin; Hearing of
     a suit; Trial of the suit.

                            Case Arising From
     EXTRAORDINARY APPELLATE JURISDICTION: Special Leave
     Petition (Civil) No. 29045 of 2024
     From the Judgment and Order dated 23.09.2024 of the High Court
     of Orissa at Cuttack in CMP Nos. 1019 of 2024

                         Appearances for Parties
     Mrs. Prabhati Nayak, Umakant Misra, Debabrata Dash,
     Ms. Apoorva Sharma, Ms. Shivangi Gupta, Niranjan Sahu, Advs.
     for the Petitioners.

                Judgment / Order of the Supreme Court

                                    Order

1.   This petition arises from the order passed by the High Court of
     Orissa in CMP No.1019 of 2024 (original jurisdiction case) dated
     23rd September, 2024 by which the petition filed by the petitioners
     herein seeking to challenge the order passed by the Civil Judge
     (Senior Division), Paralakhemundi came to be rejected thereby
     affirming the order passed by the Civil Judge rejecting the application
     filed by the petitioners herein in the capacity of being a plaintiff under
     Order XVIII Rule 1 of the Civil Procedure Code, 1908.
2.   The petitioners herein are the original plaintiffs and the respondents
     herein are the original defendants.
3.   The petitioners have instituted a suit for specific performance of contract
     based on an agreement of sale dated 1st September, 2019, said to
     have been executed by the respondents(defendants) in their favour.
4.   The respondents herein filed their written statement stating in para
     6 thereof as under:-
648                                                           [2024] 12 S.C.R.

                           Supreme Court Reports


            “6) That the averments in Para 6 of the Plaint that defendants
            though received the said letter dated 25/11/2019 sent by
            ordinary post, and knowing well in advance the contents
            of the Redg. Letter and the letter sent by courier they
            refused to receive are all dales and concocted stories of
            the plaintiff only to make a cause of action for the present
            proceedings. However when Plaintiffs and others tried to
            spread that the sale of the suit property has been finalized
            and Plaintiffs going to purchase it came to Knowledge
            of Defendants, they preferred to inform in writing about
            the cancelation of the said sham sale agreement dated
            01/09/2019 about which well appraised before to Jami
            Polichetty and his son as aforementioned. As such the
            averments in Para 6 of the Plaint that but soon all the
            Defendants in response to said letter of Plaintiffs sent a joint
            letter by Redg post A/D to the Plaintiffs are is conceived
            and placed with a malafide intension and accordingly not
            correct. As the Defendants with ulterior motive began to
            insist creating gossips about sale agreement and sale of
            the property, the Defendants preferred to give the letter
            in writing to the Plaintiffs Instead of acting in good faith
            as initially the matter arose but could not take shape of
            actual agreement as placed above and coming forward
            to take refund of the token amount kept with Defendants,
            the Plaintiffs preferred to play foul with it”
5.     In view of the specific stance of the defendants in their written
       statement referred to above, the petitioners herein as plaintiffs
       preferred an application before the trial court under Order XVIII
       Rule 1 of the Civil Procedure Code, 1908 (for short the “CPC”) with
       a prayer that as the defendants are not disputing the agreement of
       sale, the defendant should be asked to begin to lead oral evidence.
6.     The trial court rejected the application.
7.     The petitioners herein being dissatisfied with the order passed by
       the trial court, rejecting such application invoked the supervisory
       jurisdiction of the High Court under Article 227 of the Constitution
       of India. The High Court also declined to interfere.
8.     In such circumstances, the petitioners are here before this court with
       the present petition.
[2024] 12 S.C.R.                                                         649

 Jami Venkata Suryaprabha and Anr. v. Tarini Prasad Nayak and Ors.


9.   We have heard Mr. Niranjan Sahu, the learned counsel appearing
     for the petitioners.
10. Order XVIII Rule 1 of the CPC reads thus:-
          “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, in which case the defendant
          has the right to begin.”
11. As a general rule, according to the procedural law, no doubt it is
    the plaintiff who has to prove his claim by positive proof, for the
    court has to see whether there is a proof of claim before it needs to
    enquire, as to the truth or otherwise of the defence. It is open to the
    plaintiff to say that although he has the right to begin, yet he may
    rest content with relying upon the averments made in the written
    statement. Yet evidence need not always be led by the party who
    has the right to begin and on whom lies the burden of proof; it is
    open to him to sustain the onus by facts which he may elicit in cross
    examination of the other party or his witnesses. In order to come
    to the conclusion, concerning on whom the legal burden of proof
    rests, in addition to the substantive law, the pleadings of the parties
    coupled with documents that they produced & the admissions, if any
    concerning such documents have to be taken into account.
12. The High Court looked into the averments made in the plaint, it
    also looked into the averments made in the written statement and
    ultimately observed in para 4. The paras 4 and 4.1 read as under:-
          “4. Considering the submission made by Mr. Mishra,
          learned counsel for the Plaintiffs/Petitioners and on perusal
          of the record more particularly the plaint and written
          statement, it is apparent that although the-defendants have
          admitted the existence of a document called ‘agreement for
          sale’, but they have specifically stated that it was a sham
          transaction and pleadings in tire written statement clearly
          show that they had never agreed to sell the property. Of
          course, they have accepted certain amount which they
          agreed to refund.
650                                                        [2024] 12 S.C.R.

                         Supreme Court Reports


          4.1 The aforesaid fact does not ipso facto be construed
          to be admission of material facts alleged in the plaint. The
          Defendants have categorically denied that in the written
          statement they have never agreed to sell the property,
          which is held by learned trial Court in the impugned order.
          There is also denial of other averments made in the plaint.
          In that view of the matter. This Court is of the considered
          opinion: that the provision of Order XVIII Rule 1 CPC is
          not applicable to the instant case. Hence, I find no infirmity
          in the impugned order.”
13. The High Court seems to have taken the view and, in our opinion,
    rightly that although the defence has admitted the existence of a
    document that is “agreement of sale”, yet they have specifically said
    that the same is a sham transaction.
14. The High Court is right in saying that the averments made in the
    written statement sought to be relied upon by the plaintiff does not
    ipso facto be construed to be admission of materials facts in the
    alleged plaint.
15. Section 102 of the Evidence Act states that:
          “The burden of proof in a suit or proceeding lies on that
          person who would fail if no evidence at all were given on
          either side.”
16. Under Section 102 of the Evidence Act, the burden of proof rests on
    the party who would fail if no evidence at all were given on either
    side. Where the defendant admits the facts alleged by the plaintiff
    but contends that the plaintiff is not entitled to any part of the relief
    which he seeks, it is the defendant who gets the right to begin.
17. Order XVIII of the Code of Civil Procedure in terms speaks of the
    ‘hearing’ of a suit and not the trial of the suit. A court is concerned
    with the trial of a suit from the time when it is instituted. The hearing
    of a suit is only a part of the trial of the suit. The determination of
    the question as to which party has a right to begin is an integral
    part of the hearing itself.
18. Order XVIII Rule 1 indeed provides for plaintiff’s right to begin the
    evidence but not the court’s obligation to ask the plaintiffs to begin
    first. There is no impediment for the court to call upon either party
    to lead evidence first, depending upon the facts and circumstances
[2024] 12 S.C.R.                                                      651

 Jami Venkata Suryaprabha and Anr. v. Tarini Prasad Nayak and Ors.


     of the case and the nature of the issues framed. Neither party
     can insist that the other one should be asked to lead it first. It all
     depends upon what the Court deems proper in the circumstances.
     Where it finds that defendant’s plea strikes of the root of the case,
     there would be no hitch in asking him/her to prove such plea first
     which can lead to disposal of the case. There can be no watertight
     compartmentalisation in matters of justice and all rules of procedure
     are designed and directed to achieve and secure ends of justice.
19. In such circumstances, we see no reason to interfere with the
    impugned order passed by the High Court.
20. With these observations, the SLP stands disposed of.
21. Pending application(s), if any, stand disposed of.

     Result of the case: SLP disposed of.



     †
         Headnotes prepared by: Nidhi Jain