Rajesh v. Shibu

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 20TH DAY OF MARCH 2018 / 29TH PHALGUNA, 1939** **OP(C).No. 2497 of 2017** **AGAINST THE ORDER IN OS 119/2015 of MUNSIFF-MAGISTRATE COURT, PATTAMBI DATED 3-08-2017** ## **PETITIONER** **RAJESH AGED 27 YEARS, S/O RAVEENDRAN, PANDAKKAL VEEDU, KODALOOR DESOM, MARUTHUR AMSOM, PATTAMBI TALUK. PALAKKAD DISTRICT.** **BY ADV.SRI.K.RAVI (PARIYARATH)** ## **RESPONDENTS:** **SHIBU, AGED 42 YEARS, S/O SANKUNNI, REPRESENTED BY HIS WIFE AND P/A HOLDER, PRIYA, AGED 35 YEARS, PANTHAKKAPARAMBIL HOUSE, THRITHALA AMSOM, KANNANUR DESOM, PATTAMBI TALUK. PALAKKAD DISTRICT PIN-679534.** **R1 BY ADV. SRI.SANTHEEP ANKARATH R1 BY ADV. SRI.ARUN MATHEW VADAKKAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C).No. 2497 of 2017 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 COPY OF THE PLAINT PRESENTED AS O.S.NO.119/2015, ON THE FILE OF THE COURT OF THE MUNSIFF-MAGISTRATE, PATTAMBI, DATED 15/5/2015 EXHIBIT P2 COPY OF THE WRITTEN STATEMENT FILED IN O.S.NO. 119/2015, ON THE FILE OF THE COURT OF THE MUNSIFF-MAGISTRATE, PATTAMBI, DATED 21/7/15 EXHIBIT P3 COPY THE ISSUES FRAMED IN OS NO. 119/2015, ON THE FILE OF THE COURT OF THE MUNSIFF-MAGISTRATE, PATTAMBI, DATED 8/6/16 EXHIBIT P4 COPY OF THE ORDER PASSED BY THE MUNSIFF-MAGISTRATE, PATTAMBI, DIRECTING THE DEFENDANT TO BEGIN THE EVIDENCE, DATED 3/8/17** ## **RESPONDENT'S EXHIBITS:** ## **NIL** ## **//TRUE COPY//** **P.A TO JUDGE** **ab** ## C.R. ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## O.P.(C) No.2497 of 2017 ----------------------------------------Dated this the 20[th] day of March, 2018 ## _**JUDGMENT**_ The petitioner herein is the defendant in Exhibit-P1 Original Suit O.S.No.119 of 2015 on the file of the Munsiff-Magistrate Court, Pattambi. The said suit filed at the instance of the respondent herein (plaintiff) is the one seeking specific performance of an agreement for sale said to have been entered between the parties. The grievance of the petitioner is that now the trial court has taken the stand as reflected in the impugned Exhibit-P4 order dated 3.8.2017, that in the facts and circumstances of this case, it is for the defendant in the suit to begin the evidence. According to the petitioner/defendant, the reasonings given by the trial court as reflected in the impugned Exhibit-P4 order dated 3.8.2017 are fully overlooking the ambit and scope of Order XVIII Rule 1 of the C.P.C. It is in the light of these aspects that the petitioner has filed the instant Original Petition (Civil) seeking the invocation of this Court’s visitorial jurisdiction of superintendence conferred under Article 227 of the Constitution of India with the following prayers : _“(1) To call for the records leading to Ext.P4 order, passed by the Hon’ble Munsiff-Magistrate, Pattambi, in O.S.No.119/2015, dated 3.8.2017, and may be pleased to set aside the same on a finding that it is illegal, in the interest of justice._ O.P.(C) No.2497/17 : **:2::** _and_ _(2) To pass any such or further orders as the petitioner may seek and this Hon’ble Court may deem fit to grant.”_ 2. Heard Sri.Ravi K.Pariyarath, learned counsel appearing for the petitioner/defendant and Sri.Santheep Ankarath, learned counsel appearing for the respondent/plaintiff. 3. The respondent/plaintiff seeks specific performance pertaining to the agreement for sale which has been produced as document No.1 dated 1.1.2015 along with Exhibit-P1 plaint. It is stated to be an agreement executed between the parties on 31.12.2014 and registered as document No.3 of 2015 before the SRO, Pattambi, and the date of registration is shown as 1.1.2015. The impugned order at Exhibit-P4 dated 3.8.2017 reads as follows : _“The suit is for specific performance of contract based on a registered agreement. The defendant is denying execution of the agreement. But the signature is admitted. He alleges cheating by the defendant and says that stamp paper was given to the plaintiff in another transaction. Since it is a registered document, the defendant has to prove his case as the document is prima facie admissible in evidence. Only thereafter comes the case of payment of advance and willingness to complete the contract on the part of the plaintiff. Hence the defendant has to begin the evidence. For evidence. Defendant prays time. Call on 8.8.17.”_ The case of the respondent/plaintiff is that the suit for specific performance has been filed on the basis of the said agreement for sale which is a registered document. It is contended by the respondent/plaintiff that though the petitioner/defendant has denied the execution of the agreement in Exhibit-P2 written statement, he has : **:3::** O.P.(C) No.2497/17 admitted the signature therein. It is in the light of these aspects that the trial court has taken the view that though the petitioner/defendant alleges cheating by the defendant in getting his signature in the said agreement and that the stamp paper was given to the plaintiff in another transaction, etc. The trial court has taken the view that since it is a registered document, the defendant has to prove his case as the document is prima facie admissible in evidence and that only thereafter comes the case of payment of advance and willingness to complete the contract on the part of the plaintiff, etc. On this basis the trial court has taken the view that it is for the defendant to begin the evidence in the facts and circumstances of this case and had accordingly called upon the defendant to adduce his evidence. It is this order at Exhibit-P8 rendered on 3.8.2017 which is under challenge in this O.P.(C). 4. The scope and ambit of Order XVIII Rule 1 of C.P.C. is to be examined in the facts and circumstances of this case. Order XVIII Rule 1 of C.P.C. reads as follows : _“1. Right to begin :- (1) 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.”_ From a plain reading of Order XVIII Rule 1 C.P.C., it is clear 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 : **:4::** O.P.(C) No.2497/17 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. In such a situation, as stated herein above, the defendant has the right to begin. In view of the plain language employed in Order XVIII Rule 1, which clearly states that it is the plaintiff who will begin unless the facts are admitted or legal points have been raised by the defendant, the plaintiff cannot contend that he is not required to prove essential facts constituting a cause of action and likewise where the defendant pleads his defence, it is for him to lead his evidence and prove it. The right to begin flows from the rules of evidence is adumbrated in provisions like Sections 101 to 114 of the Indian Evidence Act, 1872 which deal with the burden of proof. Section 102 provides that the burden of proof in a suit or proceeding lies on that party who would fail if no evidence at all were given on either side. Rule 1 of Order XVIII thus lays down a general rule of procedure and states that the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either on a point of law (for instance points of law as in resjudicata, limitation, jurisdiction, etc.) or on some additional facts averred by him, the plaintiff is not entitled to any relief. In such a case, it is the defendant who has the right to begin (see _**Balakrishna v. Mahtab**_ reported in _AIR 1954 Orissa 191 = ILR 1954 Cuttack 165_ ). Ordinarily, in civil litigations, the : **:5::** O.P.(C) No.2497/17 plaintiff who claims certain reliefs against the defendant and for that propose, sets the litigative process in motion. Therefore, naturally it is for him to prove his case as against the defendant. This general rule governs the question as to who has the privilege or whose duty is it to begin. But it is also to be borne in mind that as held by various judgments as in _**Balakrishna v. Mahtab**_ reported in _AIR 1954 Orissa 191_ , the right to begin, however, cannot be confused with the leading of evidence and the distinction between the two must always be kept in mind. 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 certainly open to the plaintiff to say that though he has the right to begin he would rest content with relying upon the averments in the written statement and would not adduce further evidence. But the plaintiff must make his position clear before the defendant is called upon to lead his evidence [See Balakrishna v. Mahtab (Supra)]. When _onus probandi_ is on the plaintiff, he has to prove it, unless he does not want to lead evidence. Therefore, the determination of the question as to who has the right to begin is an integral part of hearing (See _**Baidhav v. Pranabandhu**_ reported in _(1965) 31 Cuttack Law Times 871_ ). The expression “ _unless the defendant admits the facts alleged by the plaintiff”_ , as occurring in Order XVIII Rule 1 C.P.C. has been held to include all facts, averments and allegations or all material facts, O.P.(C) No.2497/17 : **:6::** averments and allegations in the plaint and therefore, it is not just enough if the defendant admits only some of the facts asserted by the plaintiff. 5. In the facts of this case, it can be seen that the case projected by the respondent/plaintiff in the averments in Exhibit-P1 plaint is to the effect that he is seeking the relief of specific performance based on the abovesaid document No.1 dated 1.1.2015 which is stated to be a registered agreement entered into between the parties and which has been registered before the SRO, Pattambi, as document No.3 of 2015. 6. The specific defence taken by the petitioner/defendant in Exhibit-P2 written statement is to the effect that he had taken a personal loan of Rs.1,00,000/- from R-1/plaintiff, who is his father's younger brother, in order to tide over the defendant's financial crisis and that at the time of that personal loan transaction, a blank cheque leaf and two stamp papers for Rs.100/- were taken by the respondent/plaintiff from the petitioner and further that the petitioner was thereafter constrained to execute a sale deed in respect of 3.5 cents of his property in favour of plaintiff's sister and sale deed in that regard was duly executed and registered by the petitioner in favour of Leena on 1.1.2015 and at that time, some signatures of the petitioner were also obtained by the plaintiff on some stamp papers by making the petitioner believe that it was in relation to the sale deed transaction and that those signatures so : **:7::** O.P.(C) No.2497/17 obtained in the stamp papers have been misutilised by the plaintiff by showing as if it is the present agreement for sale executed by the petitioner in favour of the respondent/plaintiff, etc., and it is in this manner that the petitioner/defendant would project his case as to how the said document was created and registered by the plaintiff by procuring his signatures in the stamp papers on 1.1.2015 in the manner narrated above, etc. In the light of these aspects, it cannot be said that the petitioner has admitted all the material facts and averments alleged by the plaintiff in the plaint or that he has contended either in point of law, etc., that the plaintiff is not entitled to any part of the reliefs, as conceived in Order XVIII Rule 1 of the C.P.C. But certainly, as mentioned above, there is clear distinction between right to begin and leading of evidence. 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 and it is open to the plaintiff to say that though he has right to begin he would rest content with relying upon the averments in the written statement and would not adduce further evidence. As noted hereinabove, the plaintiff must make his position clear before the defendant is called upon to lead his evidence. Therefore, prima facie, this Court is of the view that the reasonings of the trial court as reflected in the impugned Exhibit-P8 order are not tenable. 7. Sri.Santheep Ankarath, learned counsel for the : **:8::** O.P.(C) No.2497/17 respondent/plaintiff would submit on the basis of instructions of his party that “ _plaintiff is not intending to lead evidence as the disputed document in question is a registered document which has the benefit of Sec.140 of the Indian Evidence Act and that the plaintiff may be given opportunity to adduce rebuttal evidence after the completion of the evidence of the defendant_ .” In the light of the specific stand now made clear by the respondent/plaintiff, it is not necessary for this Court to render any final opinion on the above said aspect mentioned hereinabove. Accordingly, as noted hereinabove, the plaintiff is having the right to take such a stand. Accordingly, it is ordered that the observations and findings made by the trial court in Exhibit-P4 order dated 3.8.2017 will stand superseded by recording the abovesaid undertaking of the plaintiff as mentioned hereinabove. In the light of the said specific stand so made clear by the respondent/plaintiff, it is for the defendant to lead his evidence and thereafter the trial court will grant an opportunity to the respondent/plaintiff to adduce rebuttal evidence after completion of evidence of the defendant. The impugned Exhibit-P4 order will stand modified as directed herein above. With these observations and directions, the above Original Petition (Civil) will stand finally disposed of. **ALEXANDER THOMAS JUDGE** csl & bkn/-