Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 11 (ORI)

Bhabatosh Sinha v. Prava Sinha

2017-01-02

D.DASH

body2017
JUDGMENT The petitioner by filing this application under Article 227 of the Constitution seeks quashment of an order dated 03.07.2006 passed by learned Civil Judge (Sr. Division), Cuttack in C.S. No.418 of 2004. 2. Facts necessary for the purpose are stated hereunder :- The opposite party (plaintiff) has filed the above noted suit for damages on account of libelous statement made in the written statement filed by this petitioner who is the defendant in the present suit as also defendant in C.S. No.375 of 2002, claiming compensation. The opposite party being the plaintiff in C.S. No.418 of 2004 filed a petition under order 18 Rule 1 of the Code of Civil Procedure seeking a direction from the Court to the petitioner (defendant) to begin with the hearing of the suit by leading evidence. This application has been allowed directing the petitioner to begin with the hearing of the suit first. At this place, it is better for proper appreciation to reproduce the part of the order of the trial Court:- “xxx xxx xxx Order 18 Rule 1 provides that the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in the facts of lower in additional facts the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has a right to begin. It is undisputed that there has been use of scandlour (sic) and dispersing (sic) words in the W.S. filed by the defendant for which the defendant has admitted the facts alleged by the plaintiff in the present suit. Now, the facts remains that the words used are devoid of malafideness or based on truth. Thus the burden lies on the defendant to begin the suit first since he has admitted the case of the plaintiff, put up on 25.07.2006 for hearing of the suit from the side of the defendant who is to begin the suit first.” 3. Heard learned Counsel for the petitioner and opposite party. I have carefully gone through the order in question as also the rival pleadings. Heard learned Counsel for the petitioner and opposite party. I have carefully gone through the order in question as also the rival pleadings. From the beginning some important aspects are required to be kept in view in dealing with this matter and those are:- (i) The statements is said to have been made by the petitioner who is the defendant in the present suit, being the defendant in the earlier suit, in the written statement that he filed in the said suit i.e. C.S. No.139 of 2002 filed by the opposite party for declaration of her right, title and interest over the land in suit from the subject matter. Prior to this Asutosh, the brother of the petitioner had filed the suit for partition against the husband of the opposite party. (ii) In the written statement filed by this petitioner in C.S. No.375 of 2002, the following averments have been called as libelous. (a) Para-23, page-12 (last line)-” xxx xxx xxx. Therefore, the contract for sale on payment thereof being deferred to a different date are all imaginary and camouflaged expressions of wicked mind.” In para-24, page -12 – That, the contentions raised in paragraphs 40 to 42 are mischievous manifestation of a crooked mind and hence all those allegations are stoutly denied,. Xxxx xxx”. (b) Page – 15 of his written statement under the sub-paragraph :- “The plaintiff’s father late Rohini Kumar Sen, a native of Midnapur in West Bengal was a person below poverty level who was having 11 bigots of landed properties inclusive of homestead as evident from the attached R.O.R. which indicates insufficiently for the maintenance of the family for the whole year for which they used to depend upon the relatives like late Rabindra or his son at Cuttack. The continuous stay of the plaintiff’s paternal family members at Cuttack created annoyance and on several occasions, the father of this defendants reacted sharply, but such sarcasm and ridicule were easily allowed by the parents of the plaintiff in most impudent (sic) manner.” The petitioner undeniably has filed the written statement duly signed by him. However, it is denied that such statements made in the written statement are directed in order to deliberately insult, intimidate or lower down the prestige, reputation as also denying to have been so stated through those averments as scandalous and disparaging. However, it is denied that such statements made in the written statement are directed in order to deliberately insult, intimidate or lower down the prestige, reputation as also denying to have been so stated through those averments as scandalous and disparaging. The contentious question thus remains in the suit is as to whether such statements made in the written statement filed by the petitioner in the earlier suit was so made maliciously and whether those constitute libel on the plaintiff. Thus there arises the question as to who would begin with the hearing of the suit having the right to so begin. The contention of the plaintiff-opposite party is that in view of such statements in the written statement, the onus has shifted to the defendant-petitioner to prove the truthfulness of such averments as those words used are per se defamatory and therefore whether those amount to libel or not is for the Court to decide and the plaintiff-opposite party is not to prove the same by adducing evidence. 4. The provision as regards the right to begin as laid down in Order-18 Rule 1 of the Code reads that the plaintiff has the right to begin unless the defendant admits the fact alleged by the plaintiff and contends that either in point of law or some other additional facts alleged by him, the plaintiff is not entitled to any part of the relief which he seeks in which case the defendant has the right to begin. Rule-1 of Order -18 further says that the party having right to begin shall state his case and produce evidence in support of the issues which he is bound to prove. 5. In the instant case, it is seen that when the trial court has gone to decide the fate of the petition filled by the plaintiff under Order 18 Rule 1 of the Code so as to say as to who has the right to begin in the suit, has made absolutely no reference to the issue/issues framed in the suit and then without any discussion being made in so many words has not concluded that the plaintiff’s suit would succeed in granting the relies as claimed even without any evidence being let in from the side of the plaintiff and if no such evidence is tendered by the defendant. On the other hand, the trial Court having taken those averments in the written statement as scandalous and disparaging has finally arrived at a conclusion that the plaintiff’s case has been admitted by the defendant and therefore, the burden lies upon the defendant to dislodge the case of the plaintiff, so he is to begin. From the order, it appears that the trial Court has made a confusion between the right to begin and proof required in support of the plaintiff’s case. Even though there is no denial with regard to the so called objectionable statements made in the written statement, that itself is not sufficient to conclude that the averments constituted libel on the character of the plaintiff. In any event, the trial Court’s decision in the matter of right to begin without referring to the issues framed and then without reaching at a definite conclusion that the plaintiff is not required to establish her case by leading evidence and the suit can simply succeed by granting all the reliefs claimed unless, the defendant establishes the defence set up by leading evidence is wholly unsustainable in the eye of law. With the above view taken holding the order in question to be a flawed one, I find it to be a fit case for interference with the same in exercise of power under Article 227 of the Constitution. 6. In the upshot of above, the order of the trial Court dated 03.07.2006 is hereby quashed. The matter is remitted to the trial Court to consider that question of right to begin the hearing of the suit afresh, and accordingly dispose of the petition filed by the opposite party under Order-18 Rule 1 of the Code in accordance with law. The application is accordingly disposed of. No order as to cost. Application disposed of.