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2016 DIGILAW 143 (ORI)

Babaji Behera v. Baishnaba Charan Behera

2016-02-19

A.K.RATH

body2016
JUDGMENT Dr. A.K.RATH, J. - This petition challenges the order dated 20.11.2000 passed by the learned Addl. District Judge, Kendrapara in Civil Revision No.38 of 2000. By the said order, learned Addl. District Judge allowed the revision and directed the learned Civil Judge (Senior Division), Kendrapara to call upon the defendant no.2 to begin first. 2. Opposite party no.1 as plaintiff instituted Title Suit No.273 of 1996 in the Court of the learned Civil Judge (Senior Division), Kendrapara for partition of the suit schedule property impleading the petitioner and the opposite parties 2 to 13 as defendants. Pursuant to issuance of summons, defendant no.2- present petitioner entered appearance and filed written statement. The plea of the defendants was that there was a previous partition. While the matter stood thus, the plaintiff filed an application under Order 18 Rule 1 CPC for a direction to the defendant no.2 to begin first. By a laconic order dated 26.6.2000, learned trial Court rejected the application. The plaintiff filed a revision before the learned Addl. District Judge, Kendrapara, which was registered as Civil Revision No.38 of 2000. By order dated 20.11.2000, learned revisional Court allowed the application. 3.Heard Mr. Abinash Routray, learned counsel on behalf of Mr. P.K. Routray, learned counsel for the petitioner and Mr. Budhiram Dash, learned counsel on behalf of Mr. N.C. Pati, learned counsel for the opposite party no.1. 4. The sole question that hinges for consideration before this Court is as to whether defendant no.2, who takes the plea of previous partition, shall begin first ? 5. Order 18 Rule 1 CPC, which is hub of the issue, is quoted hereunder: “1. Right to begin - 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.” 6. In Balakrishna Kar and another Vrs. H.K.Mahatab, AIR 1954 Orissa 191, a Division Bench of this Court held that it should therefore be borne in mind that the right to begin is not the same as the adducing of evidence in support of a party’s case. There is a distinction between the two. In Balakrishna Kar and another Vrs. H.K.Mahatab, AIR 1954 Orissa 191, a Division Bench of this Court held that it should therefore be borne in mind that the right to begin is not the same as the adducing of evidence in support of a party’s case. There is a distinction between the two. In Sudarsan Mohapatra and another v. Prasanna Kumar Mohapatra and others, 1990 (I) OLR 153, it is held that the party who would fail in case and leads no evidence has the right to begin. 7. An identical matter came up for consideration before this Court in the case of Purastam alias Purosottam Gaigouria and others v. Chatru alias Chatrubhuja Gaigouria, 1992 (I) OLR 72. A Division Bench of this Court in para-5 of the report held thus : “5. In this case, the plaintiff sought partition alleging that the property was joint family property and had not been decided by metes and bounds. The defendant-petitioners placed a previous partition since 1960-61 to defeat the plaintiff’s suit. In view of the plea of the defendants that there was a previous partition, the learned Subordinate Judge called upon the defendants to begin. The plaintiff’s plea that the property was joint family property having been admitted by the defendants and the latter having pleaded previous partition, the defendants are to lose if neither party adduced evidence, the burden being on the defendants to prove previous partition. Only when the defendants lead some evidence in proof of previous partition, the plaintiff would be obliged to lead evidence in rebuttal….” (Emphasis laid) 8. In view of the authoritative pronouncement of this Court in the case of Purastam alias Purosottam Gaigouria (supra), the inescapable conclusion is that the defendant no.2-the present petitioner shall begin first. Since the defendant is to lose if neither party adduced evidence, the burden lay on the defendant to prove previous partition. After defendant no.2 leads evidence in proof of previous partition, the plaintiff shall lead evidence in rebuttal. 9. There being no illegality or infirmity in the impugned order, this Court is not inclined to interfere with the same. Accordingly, the petition is dismissed. No costs. Petition dismissed.