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2019 DIGILAW 607 (ORI)

Binapani Jena v. Cuttack Municipal Corporation

2019-09-27

K.R.MOHAPATRA

body2019
JUDGMENT : 1. This writ petition has been filed assailing the order dated 19.01.2007 (Annexure-5) passed by learned Civil Judge (Junior Division), 1st Court, Cuttack allowing an application filed by the plaintiff under Order XVIII Rule 1 CPC praying therein to direct the defendant Nos.2 and 3 to begin hearing of the suit. 2. Mr.D.P.Mohanty, learned counsel for the petitioners- the successors of defendant No.3-submits that Title Suit No.34 of 1987 has been filed by one Bhagabata Sahoo, (the husband of opposite party No.2 and father of opposite party Nos. 3 to 9 herein) before learned Munsif, 1st Court, Cuttack praying therein for declaration of easementary right over schedule C-2 property and defendant Nos.2 and 3 have acquired no title in pursuance of void resolution dated 27.07.1963 passed by defendant No.1. The plaintiff also prayed for mandatory and permanent injunction along with other consequential reliefs. After completion of the pleadings, the plaintiff filed a petition under Order XVIII Rule 1 CPC, praying inter alia to direct the defendant Nos.2 and 3 to begin hearing of the suit and adduce evidence ahead of plaintiff. In the said petition, the plaintiff claimed that the defendant Nos. 2 and 3 have set forth a claim of acquisition of title from the defendant No.1, namely, Cuttack Municipality (now Cuttack Municipal Corporation) by way of exchange and in the process, they have denied right of the plaintiff over the suit property. In that view of the matter, the defendant Nos.2 and 3 should prove their title first and they have right to begin in terms of Order XVIII Rule 1 CPC and they should be allowed to adduce evidence first ahead of plaintiff. 3. The defendant No.3 (late husband of the present petitioner No.1) filed objection contending inter alia that the petition is misconceived as the grounds on which the plaintiff seeks relief does not satisfy the requirements of Order XVIII Rule 1 CPC. In order to prove his easementary right, the plaintiff has to adduce evidence to show that the land belonged to defendant No.1 and by way of a resolution that Cuttack Municipality (as it then was) exchanged the same with defendant Nos. 2 and 3, but the plaintiff has acquired the easementary right over C-2 property. In order to prove his easementary right, the plaintiff has to adduce evidence to show that the land belonged to defendant No.1 and by way of a resolution that Cuttack Municipality (as it then was) exchanged the same with defendant Nos. 2 and 3, but the plaintiff has acquired the easementary right over C-2 property. When neither the defendant No.2 nor the defendant No.3 has admitted the case of the plaintiff in their written statement, the prayer of the plaintiff cannot be granted. Learned Civil Judge, however, by misconstruing the provision of law, allowed the petition under Order XVIII Rule 1 CPC and passed the order under Annexure-5, which is not sustainable in the eyes of law. He, therefore, prays for setting aside the order under Annexure-5. 4. During pendency of the suit, the plaintiff died and his legal heirs have been substituted, who are opposite party Nos.2 to 9 in this writ petition. 5. Learned counsel for the plaintiffs-opposite party Nos. 2 to 9, however, supported the impugned order under Annexure-5 and submitted that the defendant Nos.2 and 3 have admitted, the ownership of the defendant No.1 over the suit schedule land, but they claimed that they have got the suit land by way of exchange. Thus, in view of the admitted fact that the defendant No.1 is still recorded as owner of the suit land and the plaintiff is only claiming the easementary right over the same and prayed to declare the impugned exchange to be illegal and inoperative, learned Civil Judge has rightly held that the defendant Nos.2 and 3 have to begin hearing of the suit and thus, the impugned order under Annexure-5 needs no interference. 6. The rival contentions of learned counsel for the parties needs consideration keeping in mind the principles laid down in Sankar Ram And Co. Vs. Kasi Naicker And Others, (2003) 11 SCC 699, wherein it is held as follows: "7. It is a cardinal rule of construction that normally no word or provision should be considered redundant or superfluous in interpreting the provisions of a statute. In the field of interpretation of statutes, the courts always presume that the legislature inserted every part thereof with a purpose and the legislative intention is that every part of the statute should have effect. In the field of interpretation of statutes, the courts always presume that the legislature inserted every part thereof with a purpose and the legislative intention is that every part of the statute should have effect. It may not be correct to say that a word or words used in a statute are either unnecessary or without any purpose to serve, unless there are compelling reasons to say so looking to the scheme of the statute and having regard to the object and purpose sought to be achieved by it. A Constitution Bench of this Court in Jaipur Zila Sahakari Bhoomi Bank Ltd. Vikas vs. Shri Ram Gopal Sharma and Ors., (2002) 1 JT 182 (SC) while interpreting and considering the effect of proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947 in para 13 observed - "The proviso to Section 33(2)(b) as can be seen from its very unambiguous and clear language, is mandatory........... Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer......... The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it.".........." 6.1 In order to understand the scope and purpose of introducing such a provision, i.e., Order XVIII Rule 1 of Code of Civil Procedure reading of the provision itself is necessary, which is reproduced hereunder for ready reference. "ORDER - XVIII HEARING OF THE SUIT AND EXAMIANTION OF WITNESSES 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." 7. In order to get a relief under Rule 1 of Order XVIII, CPC, the applicant has to satisfy the Court the following: i. The defendant has admitted all the material facts alleged by the plaintiff in the plaint; ii. The defendant contends that either in point of law or on some other additional facts stated in the written statement, the plaintiff is not entitled to the whole or any part of the relief, which he seeks. If the applicant satisfies the Court about the existence of above two ingredients, then the Court may direct the defendant to begin. 8. The above provision has been introduced to get rid of certain cumbersome procedure in the trial of the suit, which is not necessary in the facts and circumstances of the case. It also saves precious judicial time of the Court. It is based on the principles of 'facts admitted need not be proved' (Section 58 of the Evidence Act). Proviso to Section 58 of the Evidence Act provides that the Court may in its discretion require the facts admitted to be proved otherwise than by such admission. Thus, it is the discretion of the Court in the given facts and circumstances of the case to require an admitted fact to be proved otherwise than such admission. Rule 5(1) of Order VIII CPC provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be admitted in the pleadings of the defendant, shall be taken to be admitted except as against a person under disability. Further Rule-6 of Order XII CPC provides that the Court has the power to pronounce judgment on the basis of admission made. Thus, on a conspectus of the aforesaid provisions makes it clear that purpose behind insertion of Rule 1 of Order XVIII CPC is to require the defendant, only to prove those additional facts or state the law on the basis of which he claims that the plaintiff is not entitled to the relief claimed, even though the facts alleged in the plaint is admitted. In such a contingency only, the defendant can be asked to begin. 9. Plaintiff to begin the hearing of the suit is the rule and direction to the defendant to begin is an exception. In such a contingency only, the defendant can be asked to begin. 9. Plaintiff to begin the hearing of the suit is the rule and direction to the defendant to begin is an exception. Thus, the Court while exercising its judicial discretion to direct the defendant to begin, has to be very careful and scrutinize the matter in all perspectives. 9.1 In the case of Anil Rishi Vs. Gurubaksh Singh, (2006) 5 SCC 558, the Hon'ble Supreme Court held as follows: "8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under: "101. Burden of proof.- Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." 9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint. xx xx xx 18. Difficulties which may be faced by a party to the lis can never be determinative of the question as to upon whom the burden of proof would lie. The learned trial Judge, therefore, posed unto himself a wrong question and arrived at a wrong answer. The High Court also, in our considered view, committed a serious error of law in misreading and misinterpreting Section 101 of the Evidence Act. With a view to prove forgery or fabrication in a document, possession of the original sale deed by the defendant, would not change the legal position. A party in possession of a document can always be directed to produce the same. The plaintiff could file an application calling for the said document from the defendant and the defendant could have been directed by the learned trial Judge to produce the same. 19. A party in possession of a document can always be directed to produce the same. The plaintiff could file an application calling for the said document from the defendant and the defendant could have been directed by the learned trial Judge to produce the same. 19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counterevidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same." 10. In the case at hand, the defendants do not admit the case of the plaintiff in toto. On the other hand, the defendant No.3 has disputed the pleadings by filing his written statement as well as additional written statement. In that view of the matter, in the instant case, the ingredients of Order XVIII Rule 1, CPC are not satisfied and the plaintiffs have to discharge the burden of proof of the facts alleged in the plaint. Merely because, some facts, and not all materials facts, alleged by the plaintiff have been admitted by the defendants in their respective written statements, they cannot be directed to begin. 11. On scrutiny of records, it appears that learned Civil Judge was swayed away by the solitary pleadings of the defendant No.1 that the land originally belonged to it and by virtue of a resolution the same was exchanged with defendant Nos. 2 and 3. The same cannot be sacrosanct to exercise power under Order XVIII Rule 1, CPC. 11. On scrutiny of records, it appears that learned Civil Judge was swayed away by the solitary pleadings of the defendant No.1 that the land originally belonged to it and by virtue of a resolution the same was exchanged with defendant Nos. 2 and 3. The same cannot be sacrosanct to exercise power under Order XVIII Rule 1, CPC. As such, the impugned order under Annexure-5 is not sustainable in the eyes of law and is accordingly set aside. 12. Since the suit is of the year 1987 and is pending on such a trivial issue, learned trial Court is directed to take steps for expeditious disposal of the suit. The parties are directed to cooperate for disposal of the suit. If possible, learned trial Court shall try to dispose of the suit as expeditiously as possible, preferably within a period of six months from the date of first appearance of the parties if there is no legal impediment. Learned Trial Court shall act upon production of certified copy of this order. Interim order dated 13.03.2007 passed in Misc. Case No.2423 of 2007 stands vacated. 13. The writ petition is allowed to the aforesaid extent.