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2017 DIGILAW 102 (ORI)

Khedu Chandra Behera v. Draupadi Behera

2017-01-25

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. This petition challenges the order dated 22.3.2016 passed by the learned Civil Judge (Sr. Division), Jharsuguda in C.S. No. 159 of 2013. By the said order, the learned trial court allowed the application of the plaintiff under Order 18 Rule 1 C.P.C. and directed the defendants to begin first. 2. The opposite party no.1 as plaintiff instituted the suit for partition of the suit land impleading the petitioner and opposite parties 2 to 9 as defendants. Pursuant to issuance of summons, the petitioner/defendant-7 and other defendants 1 to 5, 7 and 8 entered appearance and filed a joint written statement stating therein that there was prior partition of the suit land by metes and bounds. While the matter stood thus, the plaintiff filed an application under Order 18 Rule 1 C.P.C. for a direction to the defendants to begin first. The defendants also filed objection. The learned trial court allowed the same and directed the defendants to begin first. Hence, this petition. 3. Heard Mr. Amit Prasad Bose, learned Advocate for the petitioner and Mr.Sanjeev Udgata, learned Advocate for opposite party no.1. 4. The sole question hinges for consideration before this Court as to whether defendants shall begin first ? 5. Order 18, Rule 1 C.P.C., 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, the Division Bench of this Court in paragraph-5 of the said report held as follows:- “(5). 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. H.K. Mahatab, AIR 1954 ORISSA 191, the Division Bench of this Court in paragraph-5 of the said report held as follows:- “(5). 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. It is open to the plaintiff to say that although he has the right to begin he may rest content with relying upon the averments made in the written statement and may say that he does not propose to adduce further evidence, but the plaintiff should make this statement before the defendant is called upon to adduce evidence. Unfortunately, the Court below has confused the issue and has called upon the defendant to open his case even before the plaintiff went into the box or testified to the truth of his story. We are clearly of opinion that the order of the learned Subordinate Judge is erroneous and must be set aside.” 7. In Chittaranjan Das Vrs. Janaranjan Das and others, 84 (1997) CLT 296, it is held that the plaintiff in all cases has the right to begin, exception being that when the defendant admits the facts and contends either in the point of law or on some additional facts alleged by the defendants the plaintiff is not entitled to any part of the relief which he seeks in the suit and in that event only the defendant is to begin. 8. In 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. 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) 9. In view of the same, the order passed by the learned trial court can not be said to be perfunctory or flawed warranting interference of this Court under Article 227 of the Constitution of India. Accordingly, the petition is dismissed. No costs.