JUDGMENT : Sharad Kumar Sharma, J. 1. An interesting question which has crept in for consideration before this Court is a precise interpretation of Rule 3 of Order 18 in the given set of case as placed by the counsel before this Court. The sole bone of contention and the debate would be, that as to which of either parties has to discharge the burden of proof at an appellate stage based on the pleadings taken by them before the Trial Court, or if an issue is framed as an additional issue by the Appellate Court under Order 41 Rule 25 of the C.P.C. at appellate stage. 2. For the purpose of brevity, Rule-3 of Order 18 is quoted herein. This is the material provisions applicable dealing with burden of proof, governing the proceedings at trial stage. “3. Evidence where several issues. -Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produce by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.” 3. Apparently, in the present case, the plaintiff in the suit, has explained the reason which resulted into a belated filing of the suit on 2nd April, 2002, challenging the veracity of the sale deeds dated 15th July, 1996 and 23rd April, 1997. The issue of controversy pertaining to the question of limitation for the purposes of institution of the suit for challenging a sale deed has been contained in part-III of the Limitation Act, which, under its Section 56 provides that the period of limitation to be three years when the issue of registration comes to the knowledge of the plaintiff. 4. The issue of controversy pertaining to the question of limitation for the purposes of institution of the suit for challenging a sale deed has been contained in part-III of the Limitation Act, which, under its Section 56 provides that the period of limitation to be three years when the issue of registration comes to the knowledge of the plaintiff. 4. On reading of Section 56 of the Limitation Act, was the basis of the pleading by the plaintiff in his suit for questioning the sale deeds before the Trial Court which plaintiff contended to be as per provisions of Order 7 Rule 6, which means that though under Section 5 of the Limitation Act, may not be applicable in original suit, but the delay could be suitably explained in plaint invoking Order 7 Rule 6 of the Code of Civil Procedure Coder. The same is quoted hereunder :- “6. Grounds of exemption from limitation law. – Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed: [Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plain, if such ground is not inconsistent with the grounds set out in the plaint.]” 5. On scrutiny of the provisions contained under Order 18 Rule 3, it uses the word “party beginning”, which invariably would mean the party to a proceedings who has to initiate the arguments for establishment of his case and that is why if the provisions of Order 18 Rule 3 is read with the provisions contained under Order 18 Rule 1, Order 18 Rule 1 casts a responsibility on the plaintiff who has been legally vested with the rights to begin. Order 18 Rule 1 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. -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. This is so, because it is under a given set of circumstances or pleadings of a case that the plaintiff formulates a relief sought in the suit based on certain grounds. If the plaintiff comes with a certain set of case, it is he who has to discharge the responsibility to substantiate the pleading which is the basis of the suit. If Order 18 Rule 3 which deals with the burden of proving, which has been casted to be discharged on the party beginning and if a right to begin is taken into consideration, which is vested with the plaintiff, it was the plaintiff/respondent who had to discharge the burden of proof and he cannot be permitted to take the liberty to call upon the defendant to the suit to prove an issue of limitation because it was the responsibility of the plaintiff to establish the same so as to sustain his case. Rather, it was burden of plaintiff to overcome the impediment of limitation to sustain his case that is why it was he would be the party beginning in relation to the issue of limitation. 7. Order 18 Rule 3 has been substituted by the High Court Amendment dated 20th June, 1936, by virtue of the Notification No. 3837/35 (a)-2(1). The same is quoted hereunder :- “HIGH COURT AMENDMENT Allahabad. - "3. (1) Where there are several issues the burden of proving some of which lies on the other party, the party beginning may, at his option, either state his case in the manner aforesaid and produce his evidence on those issues or reserve the statement of his case and the production of his evidence on those issues by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may state his case in the manner aforesaid and produce evidence on those issues after the other party has produced all his evidence. (2) After both parties have produced their evidence, the party beginning may address the Court on the whole case; the other party may then address the Court on the whole case; and the party beginning may reply generally on the whole case, provided that in doing so he shall not, without the leave of the Court, raise questions which should have been raised in the opening address." 8. By virtue of the substituted provisions, as made applicable to the undivided State of U.P. since having been adopted by the State of Uttarakhand under Section 87 of the Re-organisation Act, its purpose was that when the consideration comes before the Trial Court on various issues between the parties, prime ingredient is that, when burden of proving, some of which, lies on other party, in such a situation, an option can be exercised by the party to lead his evidence who is otherwise entitled to begin. The option to reserve the right would only be in relation to those issues which are not the basis of the sustainability of the proceedings but are only the basis of the adjudication of the individual rights. 9. Even as per the intention of Order 18 Rule 13, the right to opt from leading an evidence for the party liable to begin, is only when burden of proving of some of which lies on the other. Hence, in this case, the issue of which burden was treated to be shifted was not an issue required to be proved by defendant. Hence, it was not an issue involved proof of defendant, for which, right could opted to be reserve. 10. In the instant case, on account of the fact that the suit, admittedly, was instituted at a belated stage, it would be going to the very foundation of the maintainability of the proceedings as the suit would be barred by the Limitation Act or not and what would be its impact vis-à-vis to the provisions of Order 7 Rule 6, is taken into consideration because of the fact that the plaintiff has explained the reason of delay in the plaint itself falling to be under Order 7 Rule 6. In such a circumstance, be it the plaint averments or the impact of Order 18 Rule 3 CPC, since the tenability of the proceedings was to be established by the plaintiff, he cannot have a recourse under Order 18 Rule 3 of shying away from leading the evidence on the issue of limitation as framed by this Court and directed to be decided by the Appellate Court, itself. 11. As already observed above, since the word “desire” as referred under Section 101, of the Indian Evidence Act, here, in the instant case has been expressed by the plaintiff to give a judgment on the issue of limitation and when the substantiality of proceedings of his suit depends upon the existence and establishment of fact of limitation, in that view of the matter, the person is bound to prove the existence of the reason of delay as explained by him in the plaint. Here “desire” could be that of the plaintiff. The provisions of 101 of the Evidence Act, since being a substantive law, settling the modalities for burden of proof, will have precedence over the procedural law. 12. On a scrutiny of the said provision contained under Order 18 Rule 3, it always casts a responsibility on the party to a suit who is a “party beginning” under Order 18 Rule 1, to produce evidence or reserve it by way of answer to the evidence produced by the other parties. The language used therein is the choice which is available to the party who is a “beginning”. The said provision do not anywhere contemplate nor could be read as if that the party who is required to begin the evidence can call upon the defendant to adduce his evidence first and, thereafter, he can utilize Rule-3 for reserving his option for leading evidence. This is not the intention of Rule-3 of Order 18. 13. According to brief facts of the instant case, a very peculiar situation which has arisen is that the plaintiff respondent, herein, had instituted a Suit, being Suit No.86 of 2002, Vineet Kumar Vs. Kashi Ram, wherein, he has prayed for the cancellation of the sale deed dated 15th July, 1996, executed by defendant No.1 in favour of the defendant No.4 and 17th April, 1997, second sale deed executed by defendant No.1 in favour of defendant No.5, in a suit which was filed on 02.04.2002. 14. Kashi Ram, wherein, he has prayed for the cancellation of the sale deed dated 15th July, 1996, executed by defendant No.1 in favour of the defendant No.4 and 17th April, 1997, second sale deed executed by defendant No.1 in favour of defendant No.5, in a suit which was filed on 02.04.2002. 14. On exchange of pleading, it is the case of the plaintiff respondent that based on his averments in the plaint, an issue was framed with regard to the limitation, being issued No.5. But, on perusal of the issue, thus framed, this Court feels that none of the issues related to the limitation, though there exists pleading by the plaintiff to the said effect was pressed to be framed before Trial Court. 15. The learned Counsel for the plaintiff/respondent submits that when he instituted the suit for the cancellation of the sale deed, in para-3 and the amended paragraph 3-A, he has raised a plea pertaining to the limitation in instituting the suit by pleading therein the knowledge which he could gather about the sale deeds. Para 3 & 3A are quoted herein: **3- ;g fd oknh vius firkth ds ejus ds le; ukckfyd Fkk vkSj oknh tc ckfyd gqvk rks /khjs&/khjs mlus viuh lEifRr dh ckot jktLo foys[k ns[kus 'kq: fd;s rks fnlEcj 2001 ekywekr gqbZ fd izfroknhx.k ua0 1 o 2 us iz'uxr lEifRr en ^v^ dk foØ; i= izfroknuh ua0 3 o 4 ds i{k esa dj fn;k lEifRr en ^c^ dk foØ; i= izfroknh ua0 1 us izfroknh ua0 5 ds gd esa dj fn;kA 3-v& ;g fd oknh dks ekywekr gqbZ fd Jherh vk'kh csok vrj flag us dksbZ foØ; Ik= vius vkidks iz'uxr lEifRr dh ekfyd tkfgj djrs gq, fnukad 16-4-1980 dks iz'uxr lEifRr fuEu fookfnr dk izfroknh la0 1 o 2 dks foØ; i= dj fn;kA tcfd Jherh vk'kh nsoh csok vrj flag dks iz'uxr lEifRr fuEu fookfnr dks foØ; djus dk vfk/kdkj izkIr ugha Fkk] bl dkj.k fn0 16-4-1980 dk foØ; i= tks fnukad 21-4-1980 dks jftLVMZ gqvk fcuk vf/kdkj ds voS/kkfud] lkft'kh rkSj ls fd;k gqvk gS] tks 'kwU; ,oa fu"izHkkoh gS vkSj mDr foØ; i= ds vk/kkj ij izfroknh la0 1 o 2 dks dksbZ vf/kdkj iz'uxr lEifRr fuEu fookfnr esa ugha igqaprs gSaA** 16. It was accepted by the Trial Court that in such type of contingency where issue of limitation becomes one of the prime issue of controversy, which goes to maintainability, and more particularly, when it is the part of pleadings, at the initial stage itself, the Trial Court should have framed an issue of limitations to resolve its impact on the case. However, in the instant case that was not done. Ultimately, the suit was decreed by the judgment dated 27th June, 2012. 17. Being aggrieved against the said judgment and decree, the petitioner preferred an Appeal invoking Section 96 of the Code of Civil Procedure, being Appeal No.40 of 2012, Smt. Bhramwati Vs. Vineet Kumar, by filing the same on 27th, August, 2012. Mr. Siddhartha Singh, the learned counsel for the appellant/petitioner contends that to raise the issue of propriety of the maintainability of the suit for cancellation of the sale deed due to bar of limitation, they have moved an application before the Appellant Court for framing of an additional issue pertaining to limitation and its impact on the suit. The said application was objected by the plaintiff respondent before the Appellant Court by filing an objection on 14th August, 2015. The learned appellate court, by an order dated 12th October, 2015, has rejected the application preferred by the petitioner appellant for the framing of an additional issue of limitation. Against the rejection of an application by the order of the Appellate Court dated 12th, October, 2015, the petitioner preferred a writ petition, being Writ Petition No.2673 of 2015, Smt. Bhramwati Vs. Vineet Kumar which came up for consideration before the Coordinate Bench of this High Court and the same was decided by the judgment dated 21st March, 2017, with the following directions: “4. In view of above, the impugned order is set aside. The lower appellate court is directed to frame the aforesaid legal issue and permit the parties to lead their evidence in the appellate court itself, if required, and accordingly decide the same (appeal) at an earliest possible. The lower appellate court will not grant unnecessary adjournments to either of the parties. Consequent thereto, the writ petition stands disposed of. ” 18. The lower appellate court will not grant unnecessary adjournments to either of the parties. Consequent thereto, the writ petition stands disposed of. ” 18. The Coordinate Bench of this Court directed the Appellate Court to frame the additional issue and permitted the parties to lead their evidence before the Appellant Court itself and decide their appeal, itself with the additional issues. 19. In pursuance to the judgement dated 21st March, 2017, an issue was framed before the Appellant Court as to, “whether the suit was barred by limitation”. While the issue was being considered after the judgment of this Court dated 21.03.2017, before the Appellant Court, the plaintiff respondent moved an application under Rule 3 of Order 18 praying for that he indents to reserve his rights for leading the evidence for the decision on the additional issue thus framed on limitation and the defendant may be called upon to lead his evidence first for substantiating the issue which he has got framed in pursuance to his application filed before the Appellant Court. The application as filed by plaintiff / respondent under Order 18 Rule 3 was allowed by the impugned order dated 19.08.2017. Thus, the present writ petition by defendant/petitioner. 20. The Learned Counsel for the plaintiff respondent submits that in the instant case when the issue is being framed at an appellate stage and that too at the behest of appellant and has been directed to be decided by Appellate Court itself on this situation, the term “party beginning” would be read in consonance to the appellant before the appellate court and not the plaintiff. This court is in respectful disagreement with the argument as extended by the Learned Counsel for the plaintiff respondent. The justification being that it is admitted case that in para 3 & 3A of the plaint, there was a plea of limitation raised by the plaintiff/ respondent but he had voluntarily not got an issue framed on the issue of limitation as it was plaintiff who wanted to bring his suit out of the embargo of limitation. Hence, it was obviously plaintiff who will have to prove the issue. Hence, it was obviously plaintiff who will have to prove the issue. He should have got the issue framed at trial stage or at atleast Trial Court should have framed an issue of limitation and when the issue of limitation is framed at the behest of an application filed by the defendant petitioner at an appellate stage, it would be deemed that the issue of limitation has come up for consideration for the first time before the Appeal Court itself and that too when the directions of learned Single Judge of the Court is taken into considerations. 21. In such an eventuality, when the issue is framed in compliance of the order passed by Coordinate Bench of this court on dated 21st March, 2017, though apparently, the plaintiff / decree holder may seem to be an opposite party in the appeal but for the purpose of deciding the issue, which has been raised for the first time, he acquires the status of the plaintiff, who has to discharge his burden of proof in the light of the pleadings which he himself have raised in the plaint in para 3 and 3A, who otherwise was facing the embargo caused by limitation which he had to overcome. Even otherwise also, the argument of the learned Counsel for the respondent is not acceptable, for the reason that on scrutiny of Rule 3 of Order 18, it does not contemplate the shifting of burden on the request of the person who was supposed to begin. It only contemplates that the person who is liable to begin his evidence can reserve his rights by way of an option to lead his evidence at the later stage after the disclosure of the evidence by the other sides. The plaintiff respondent, herein, intends to that the defendants may be called upon to discharge the responsibility and to adduce the evidence first which would be followed by the evidence of plaintiff /respondent in the appeal. 22. As already observed above, since the status of the plaintiff/respondent in the appeal, would be acquiring to be that of a person to begin, it was he who has to discharge the burden of proof and will have to lead his evidence first in the light of the pleadings raised by him in para 3 & 3A of the suit. 23. 23. The apprehension which has been expressed by the learned counsel for the respondent is that the consequential effect of rejection of his application under Order 18 Rule 3 would be that he may be deprived of leading evidence in rebuttal to the evidence of the defendant. It goes without saying as already held out above, the plaintiff has led the evidence and if as a consequence thereof, the defendant records his evidence, it will not prejudice the plaintiff’s right to adduce his evidence in rebuttal. 24. The provision of Order 18 Rule 3 has also to be read alongwith the provisions contained under Chapter 7 of Part-III of the Indian Evidence Act. In view of the language used under Section 101 of the said Act, it always casts burden on a party to the proceedings to assert a certain facts and claim certain rights or liability depending on those facts. Hence, too, burden has to be discharged by the plaintiff. 25. In that view of the matter, the writ petition is allowed. The impugned order dated 19.08.2017, as passed by the Lower Appellate Court in Civil Appeal No.40 of 2012, Bharamwati and others Vs. Vineet Kumar and others allowing the application of the plaintiff/respondent under Order 18 Rule 3 of the CPC is quashed. The plaintiff respondent, if he so chooses may lead his evidence first and, thereafter, the Appellate Court will proceeds to scrutinize the issue on limitation exclusively in accordance with law. No order as to costs.