Ajitha S v Jayasree S, Federal Bank Ltd, State Bank of India, Namitha R, Navami R

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 7[TH] DAY OF DECEMBER 2021 / 16TH AGRAHAYANA,** ## **1943** ## **OP(C) NO. 2334 OF 2021** **OS 208/2019 OF PRINCIPAL SUB COURT , ERNAKULAM** ## **PETITIONER/S:** AJITHA. S AGED 60 YEARS W/O R. SREEKUMAR, MITHILA, KUREEKKAD P.O.PIN682 305, KUREEKKAD VILLAGE, KANAYANNUR TALUK. BY ADVS. ABRAHAM P.GEORGE M.SANTHY 1 JAYASREE. S AGED 55 YEARS W/O RAGHUNATHA KARANAVAR, NANDANAM, PETTA, POONITHURA P.O.PIN-682 038. 2 THE FEDERAL BANK LTD, POONITHURA BRANCH , PETTA, POONITHURA VILLAGE, KANAYANNUR TALUK, PIN-682 038. 3 THE STATE BANK OF INDIA, POONITHURA BRANCH, PETTA, POONITHURA VILLAGE, KANAYANNUR TALUK, PIN-682 038. 4 NAMITHA R, AGED 34 YEARS D/O JAYASREE S, NANDANAM, PETTA, POONITHURA P.O.PIN-682 038. 5 NAVAMI R, AGED 28 YEARS D/O JAYASREE S, NANDANAM, PETTA, POONITHURA P.O.PIN-682 038. ## **RESPONDENT/S:** ## **OTHER PRESENT:** SC FOR SBI M.JITESH MENON;SC FOR FEDERAL BANK LEO GEORGE **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(C) No.2334 of 2021 -2- ## **JUDGMENT** Dated this the 07[th] day of December, 2021 The petitioner is the plaintiff in O.S.No.208 of 2019 pending on the files of the Sub Court, Ernakulam. The suit is filed, seeking to recover an amount of Rs.60,00,000/- from defendants 1, 4 and 5 personally and charged upon their assets. The essential facts are as under; The petitioner and first respondent are sisters. Their parents are no more. The petitioner's mother died on 27.03.2019 and father had predeceased her mother. After petitioner's mother's death, she got information that the first respondent and her daughters had illegally transferred money from the mother's fixed deposit account. The petitioner being entitled for half the amount, the suit was filed. 2. Respondents 1, 4 and 5 filed written ## O.P.(C) No.2334 of 2021 -3- statement, contending that late P.N.Sarasamma, mother of the petitioner and first respondent, had maintained joint accounts with the first respondent. The mode of operation of the accounts was 'either or survivor'. The first respondent being a joint account holder, is entitled to deal with the account on her own. It is alleged that the mother had been driven out of the petitioner's house. Thereafter, on the mother's request, the joint accounts were opened. The suit was included in the special list on 20.11.2021 and was adjourned to 30.11.2021 on the petitioner's request. At that juncture, petitioner moved Ext.P6 application under Order XVIII Rule 1 of CPC, for a direction to the respondents/defendants to lead evidence in the case. According to the petitioner, the fact that late P.N.Sarasamma had joint accounts with the first defendant not being disputed, it is for the ## O.P.(C) No.2334 of 2021 -4- defendants to let in evidence to prove the first defendant's entitlement to withdraw money from the account. The party respondents filed objection and by Ext.P8 order, trial court dismissed the application. Hence, this original petition. 3. Learned Counsel for the petitioner referred to paragraph 10 of Ext.P2 written statement in support of the contention that there is a categorical admission by defendants 1, 4 and 5 that P.N.Sarasamma was having joint accounts with the first respondent and the mode of operation of the account is 'either or survivor'. According to the petitioner, court below having directed the banks to produce certified copies of the account statements of P.N.Sarasamma containing details of the amount in the account as on the date of death of Sarasamma and the transfers effected thereafter, all that the O.P.(C) No.2334 of 2021 -5- petitioner is required to do, is to compute the amounts. On the other hand, the first defendant has to prove her entitlement to withdraw the amount from the joint account, for reason of the mode of operation being 'either or survivor'. Being so, the defendants should be directed to begin the evidence. 4. The scope and ambit of Order XVIII Rule 1 of CPC being under consideration, the provision is extracted for easy reference; _“Order XVIII. Hearing of the suit and examination of witnesses._ _**1. Right to begin.—** The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contents 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.”_ As per the statutory scheme, the plaintiff has the right to begin the case. It is for the defendants to decide whether they would like to ## O.P.(C) No.2334 of 2021 -6- lead evidence and the court does not have the power to direct the defendants to step into the box first and lead evidence, other than under circumstances squarely falling within Order XVIII Rule 1. The defendants get the right to begin only when the facts alleged by the plaintiff are admitted and the plaintiff’s entitlement for relief is contested in law or on the basis of the additional facts asserted by the defendant. The question was considered by the Orissa High Court in _**Binapani Jena and others v. Cuttack Muncipal**_ ## _**Corporation and others [AIR 2020 Orissa 26]**_ , the relevant portion of which is extracted hereunder; _"Thus, on a conspectus of the aforesaid provisions makes it clear that purpose behind insertion of Rule 1 of Order XVIII CPC is to require the defendant, only to prove those additional facts or state the law on the basis of which he claims that the plaintiff is not entitled to the relief claimed, even though the facts alleged in the plaint is admitted. In such a contingency only, the defendant can be asked to begin."_ 5. This Court, in _**Rajesh v. Shibu [2018 (2)**_ O.P.(C) No.2334 of 2021 -7- _**KLT 930]**_ considered the scope and ambit of Order XVIII Rule 1 and held that it is not necessary that the evidence must always be led by the party who has right to begin and on whom lies the burden of proof. It is always open for the plaintiff to say that, though he has right to begin, he would rest content by relying upon the averments in the written statement and would not lead further evidence. 6. As far as the instant case is concerned, a perusal of the written statement of defendants 1, 4 and 5 reveals that the defendants are basing their claim on the strength of a Will executed by Sarasamma in favour of the first defendant. As such, validity of the Will would also arise for consideration in the suit. Various allegations are seen raised by the defendants with respect to the circumstances under which the joint account was opened. Being O.P.(C) No.2334 of 2021 -8- so, the trial court cannot be faulted for having rejected the petitioner's application under Order XVIII Rule 1. In the result, the original petition is dismissed. Sd/- **V.G.ARUN JUDGE** Scl/ O.P.(C) No.2334 of 2021 -9- ## **APPENDIX OF OP(C) 2334/2021** ## PETITIONER EXHIBITS Exhibit P1 TRUE PHOTOCOPY OF THE PLAINT IN OS NO 208.2019 DATED 5.9.2019 Exhibit P2 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS 1,4,&5 DATED 19.9.2019 Exhibit P3 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY THE 2ND DEFENDANT DATED 22.7.2021 Exhibit P4 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY THE 3RD DEFENDANTS DATED 19.7.2021 Exhibit P5 THE TRUE PHOTOCOPY OF THE ORDER DATED 14.7.2021 IN FAO NO 14/2020 PASSED BY THE HON'BLE HIGH COURT Exhibit P6 TRUE PHOTOCOPY OF THE IA NO 08/2021 IN OS NO 208/2019 DATED 15.11.2021 Exhibit P7 THE TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANTS 1,4,&5 IN IA NO 8/2021 DATED 20.11.2021 Exhibit P8 THE CERTIFIED COPY OF THE ORDER DATED 29.11.2021 IN IA NO 8/2021 IN OS NO 208/2019 Exhibit P9 TRUE PHOTOCOPY OF THE ORDER IN IA NO 3842/2019 IN OS NO 208/2019 DATED 24.9.2021