Supreme Court of India
Jami Venkata Suryaprabha vs Tarini Prasad Nayak on 9 December, 2024
2024 INSC 1001 REPORTABLE
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY APPELLATE JURISDICTION
Special Leave Petition (Civil) No. 29045/2024
JAMI VENKATA SURYAPRABHA & ANR. Petitioner(s)
VERSUS
TARINI PRASAD NAYAK & ORS. Respondent(s)
O R D E R
1. This petition arises from the order passed by the High Court of
Orissa in CMP No.1019 of 2024 (original jurisdiction case) dated 23rd
September, 2024 by which the petition filed by the petitioners herein
seeking to challenge the order passed by the Civil Judge (Senior
Division), Paralakhemundi came to be rejected thereby affirming the
order passed by the Civil Judge rejecting the application filed by
the petitioners herein in the capacity of being a plaintiff under
Order XVIII Rule 1 of the Civil Procedure Code, 1908.
2. The petitioners herein are the original plaintiffs and the
respondents herein are the original defendants.
3. The petitioners have instituted a suit for specific performance
of contract based on an agreement of sale dated 1st September, 2019,
Signature Not Verified
said to have been executed by the respondents(defendants) in their
Digitally signed by
CHANDRESH
Date: 2024.12.18
17:29:24 IST
Reason:
favour.
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4. The respondents herein filed their written statement stating in
para 6 thereof as under:-
“6) That the averments in Para 6 of the Plaint that
defendants though received the said letter dated
25/11/2019 sent by ordinary post, and knowing well
in advance the contents of the Redg. Letter and the
letter sent by courier they refused to receive are
all dales and concocted stories of the plaintiff
only to make a cause of action for the present
proceedings. However when Plaintiffs and others
tried to spread that the sale of the suit property
has been finalized and Plaintiffs going to purchase
it came to Knowledge of Defendants, they preferred
to inform in writing about the cancelation of the
said sham sale agreement dated 01/09/2019 about
which well appraised before to Jami Polichetty and
his son as aforementioned. As such the averments in
Para 6 of the Plaint that but soon all the Defendants
in response to said letter of Plaintiffs sent a joint
letter by Redg post A/D to the Plaintiffs are is
conceived and placed with a malafide intension and
accordingly not correct. As the Defendants with
ulterior motive began to insist creating gossips
about sale agreement and sale of the property, the
Defendants preferred to give the letter in writing
to the Plaintiffs Instead of acting in good faith as
initially the matter arose but could not take shape
of actual agreement as placed above and coming
forward to take refund of the token amount kept with
Defendants, the Plaintiffs preferred to play foul
with it”
5. In view of the specific stance of the defendants in their written
statement referred to above, the petitioners herein as plaintiffs
preferred an application before the trial court under Order XVIII
Rule 1 of the Civil Procedure Code, 1908 (for short the “CPC”) with
a prayer that as the defendants are not disputing the agreement of
sale, the defendant should be asked to begin to lead oral evidence.
6. The trial court rejected the application.
7. The petitioners herein being dissatisfied with the order passed
by the trial court, rejecting such application invoked the
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supervisory jurisdiction of the High Court under Article 227 of the
Constitution of India. The High Court also declined to interfere.
8. In such circumstances, the petitioners are here before this
court with the present petition.
9. We have heard Mr. Niranjan Sahu, the learned counsel appearing
for the petitioners.
10. Order XVIII Rule 1 of the CPC reads thus:-
“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.”
11. As a general rule, according to the procedural law, no doubt it
is the plaintiff who has to prove his claim by positive proof, for
the court has to see whether there is a proof of claim before it
needs to enquire, as to the truth or otherwise of the defence. It is
open to the plaintiff to say that although he has the right to begin,
yet he may rest content with relying upon the averments made in the
written statement. Yet evidence need not always be led by the party
who has the right to begin and on whom lies the burden of proof; it
is open to him to sustain the onus by facts which he may elicit in
cross examination of the other party or his witnesses. In order to
come to the conclusion, concerning on whom the legal burden of proof
rests, in addition to the substantive law, the pleadings of the
parties coupled with documents that they produced & the admissions,
if any concerning such documents have to be taken into account.
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12. The High Court looked into the averments made in the plaint,
it also looked into the averments made in the written statement and
ultimately observed in para 4. The paras 4 and 4.1 read as under:-
“4. Considering the submission made by Mr. Mishra,
learned counsel for the Plaintiffs/Petitioners and
on perusal of the record more particularly the
plaint and written statement, it is apparent that
although the-defendants have admitted the existence
of a document called ‘agreement for sale’, but they
have specifically stated that it was a sham
transaction and pleadings in tire written statement
clearly show that they had never agreed to sell the
property. Of course, they have accepted certain
amount which they agreed to refund.
4.1 The aforesaid fact does not ipso facto be
construed to be admission of material facts alleged
in the plaint. The Defendants have categorically
denied that in the written statement they have never
agreed to sell the property, which is held by
learned trial Court in the impugned order. There is
also denial of other averments made in the plaint.
In that view of the matter. This Court is of the
considered opinion: that the provision of Order
XVIII Rule 1 CPC is not applicable to the instant
case. Hence, I find no infirmity in the impugned
order.”
13. The High Court seems to have taken the view and, in our opinion,
rightly that although the defence has admitted the existence of a
document that is “agreement of sale”, yet they have specifically said
that the same is a sham transaction.
14. The High Court is right in saying that the averments made in
the written statement sought to be relied upon by the plaintiff does
not ipso facto be construed to be admission of materials facts in
the alleged plaint.
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15.Section 102 of the Evidence Act states that:
“The burden of proof in a suit or proceeding lies
on that person who would fail if no evidence at all
were given on either side.”
16. Under Section 102 of the Evidence Act, the burden of proof rests
on the party who would fail if no evidence at all were given on
either side. Where the defendant admits the facts alleged by the
plaintiff but contends that the plaintiff is not entitled to any part
of the relief which he seeks, it is the defendant who gets the right
to begin.
17. Order XVIII of the Code of Civil Procedure in terms speaks of
the ‘hearing’ of a suit and not the trial of the suit. A court is
concerned with the trial of a suit from the time when it is
instituted. The hearing of a suit is only a part of the trial of the
suit. The determination of the question as to which party has a right
to begin is an integral part of the hearing itself.
18. Order XVIII Rule 1 indeed provides for plaintiff’s right to begin
the evidence but not the court’s obligation to ask the plaintiffs to
begin first. There is no impediment for the court to call upon either
party to lead evidence first, depending upon the facts and
circumstances of the case and the nature of the issues framed. Neither
party can insist that the other one should be asked to lead it first.
It all depends upon what the Court deems proper in the circumstances.
Where it finds that defendant’s plea strikes of the root of the case,
there would be no hitch in asking him/her to prove such plea first
which can lead to disposal of the case. There can be no watertight
compartmentalisation in matters of justice and all rules of procedure
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are designed and directed to achieve and secure ends of justice.
19. In such circumstances, we see no reason to interfere with the
impugned order passed by the High Court.
20. With these observations, the SLP stands disposed of.
21.Pending application(s), if any, stand disposed of.
…………………………………………J.
(J.B. PARDIWALA)
…………………………………………J.
(R. MAHADEVAN)
New Delhi.
9th December, 2024.
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