Ramakanta Patnaik vs. Suresh Chandra Sahoo

ORISSA HIGH COURT, CUTTACK.

C.M.P. No.1212 of 2015

An application under Article 227 of Constitution of India.

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Ramakanta Patnaik & Others … Petitioners

Versus

Suresh Chandra Sahoo<br>& Another	…<br>Opposite parties
For Petitioners<br>:	M/s. Bidhayak Pattnaik, S.K. Swain,<br>B. Rath, A. Pattnaik.
For Opposite party No.1<br>:	M/s. Amit Prasad Bose, N. Hota,<br>S.S. Routray, Mrs. Vijaya Kar, S.S. Das

PRESENT :

THE HONOURABLE MR. JUSTICE BISWANATH RATH

--------------------------------------------------------------------------------------------------- Date of hearing : 05.11.2015 Date of Judgment : 13.11.2015 ---------------------------------------------------------------------------------------------------

Biswanath Rath, J. This is a Civil Miscellaneous Petition filed under Article 227 of the Constitution of India challenging an order dated 31.08.2015 passed by the Civil Judge (Sr. Divn.), Bhubaneswar in C.S. No.1131/2011, in rejecting an application under Order-18, Rule-1 & 3 C.P.C. at the instance of the plaintiffs-petitioners seeking a direction from the Trial Court for directing the defendants to begin first.

2. Plaintiffs-petitioners filed a suit against the defendants-opposite

parties seeking the following reliefs :

"Therefore the plaintiff claims

• A. Let the registered deed of sale No-5396 dtd.27.12.1993 be declared void, illegal, inoperative and fabricated one and not binding to the plaintiffs.
• B. Let it be declared that the defendant has not derive any right, title, interest by virtue of forged deed of sale No.-5396, dtd.27.12.1993 in respect of suit 'A' schedule land.
• C. Let the possession of the plaintiffs be confirmed and in case it is found during course of the suit the plaintiffs are disposed the possession be delivered through process of Court.
• D. Let the defendant or anybody claiming under him be permanently restrained to interfere in the possession of the plaintiff in respect of suit schedule 'A' of properties.
• E. Let the costs of the suit be decreed in favour of the plaintiffs.
• F. Any other relief/reliefs to which the plaintiff is entitled to be passed."

Upon service of notice, the defendant filed written statement on 24.08.2011 followed with an additional written statement pursuant to amendment of the plaint during pendency of the C.S. No.1131/2011. The petitioners filed an application under Order-18, rule-1 & 3 of C.P.C. seeking inter-alia a direction against the defendant for adducing evidence first on the premises of pleadings in relation to obtaining a sale-deed, pursuant to which, the defendant filed an objection seriously objecting the claim of the petitioners.

Considering the pleadings as well as the submission of the parties the Civil Judge (Sr. Divn.), Bhubaneswar was pleased to reject the application at the instance of the plaintiff-petitioners and thereby directed the plaintiff-petitioners to begin first.

3. The petitioners challenged the said order on the premises that in view of pleadings of the opposite party in his written statement in response to the allegation of the petitioner on the obtaining of the saledeed the Trial Court ought to have directed the defendant to begin first.

The paragraph Nos. 11 & 14 of the plaint reads as follows:

"11. That it is pertinent to submit here that on dtd.05.06.2011 one Bhimasenn Patra of Bhubaneswar came to the plaintiff No.-1 and said to purchase lands from Suresh Chandra Sahoo the defendant out of suit plot and on quarry it is ascertained that the defendant has created a deed of sale in his name purported to have been executed and registered by Udayanath Pattanaik.

14. that the defendant taking advantage of weakness of Udayanath Pattanaik towards defendant who was in collusion with deed writer, witnesses and identifier managed to create a deed of sale purported to have been executed by Udayanath Patanaik vide deed No.-5396, dtd.27.12.1993 furnishing false and baseless recitals by forging the signature of Udayanath Pattanaik and no consideration has been passed and no delivery of possession was being made to defendant."

15. Pertaining to the allegation against the defendant in relation to the particular sale deed quoted as hereinabove. The defendantopposite party in his written statement in paragraphs 14 & 17 pleaded as follows :-

"14.That, as regards to para-11 of the plaint it is respectfully submitted here that, recorded owner Udayanath Pattnaik on dt.-7.12.1993 executed the sale seed in favour of this defendant and in pursuance to this delivery possession of the land was also given to the defendant and since then this defendant has been enjoying the suit land of his own having marketable title over the same. Not only that, in the year-1995 defendant have also mutated his name in respect to the suit land and has been paying ground rent to the concerned authority and obtained receipt thereon. In the land pass book the suit land has also been recorded in the name of this defendant. Defendant after being purchased the suit land, constructed his residential house over the same. The plea taken by the petitioner that defendant managed to create a regd. Sale deed in his favour by forgering the signature of Udayanath Pattnaik is completely false, fabricated and baseless.

17. That, the allegation as labeled by the plaintiff in para-14 of the plaint is totally false, fabricated and baseless. Deceased Udayanath Pattnaik during his life time never raised any voice about the deed to which he has executed in favour of this defendant. After his death the plaintiffs are coming forward to challenged the same, this is not only a painful submission but also it proves the greediness of plaintiff. No fraud was practiced either by the defendant or by the deed writer. Specific land was transferred and the same was well demarcated and not only that defendant by investing huge amount constructed a residential house over the same. In no point of time plaintiff raised any voice about the sale deed of the year-1993."

18. From reading of the plaint averments particularly in paragraph Nos.11 & 14 and the response of the defendant in paragraph Nos.14 & 17 in the written statement, it appears that there is clear denial by the defendant to the allegation of managing to get into the sale deed by the plaintiff.

Coming back to the provisions at Order-18, rule-1 & 3 of the C.P.C. the same reads as follows :

"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.

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 produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case."

6. From the pleadings as narrated hereinabove and from reading of the provisions as contained in Order 18, rule 1 & 3 of the C.P.C., this Court is of the view that in view of the specific denial by the opposite party, the petitioners were duty bound to begin first.

7. Now coming to the decisions as relied upon by the opposite party in a case in between "Mirza Niamat Baig and another Versus Sk. Abdul Sayeed and others", and as reported in 2008 (II) OLR 566

this Court considering the applicability of Order18, rule-1 has come to hold as follows:

"The right to begin is to be determined by the rules of evidence. As a general rule, the party on whom the burden of proof rests should begin. In no case, the plaintiff can be allowed to take any undue advantage over the defendant, whatever may be the position or stand the defendant takes, for the very reason that the defendant is expected to answer the claim made by the plaintiff in the suit. In the wording "unless the defendant admits the facts alleged" occurring in Order 18, Rule 1, C.P.C., the word "facts" means all the materials facts. Thus, where a defendant admits only some of the facts alleged by the plaintiff, there the plaintiff should begin."

Similarly, in an another decision as rendered by this Court in a case in between Jayaram Sahoo @ Behera Versus Banamali Sahoo and others and as reported in 2012 (II) OLR 681, this Court referring to the aforesaid decision in paragraph 10 held as follows :

"10. In view of the above decisions, it is seen that only when the defendant admits the allegations made by the plaintiff in the plaint, but has pleaded a different set of additional facts, the onus of proving such facts lying on him, the exception of Order 18, Rule 1 CPC providing that the defendant should begin the evidence first would be applicable, otherwise, the general principle as envisaged under Order 18, Rule 1 CPC shall be followed.

8. In view of the findings on the factual position and the observations on the legal position involved in the matter, this Court finds that the Trial Court has rightly attended the issue and very correctly arrived at the conclusion that the plaintiffs-petitioners failed in establishing their case bringing the provisions under Order-18, rule-1 & 3 and thus has rightly rejected the application.

9. In view of the facts as narrated hereinabove and findings arrived by this Court, the provision contained in Order 18, rule 1 & 3 C.P.C. and the decisions as referred hereinabove, this Court observes that the plaintiff-petitioners have failed in establishing the case in their favour and there is no illegality or impropriety in the impugned order. Thus while confirming the order dated 31.08.2015 in C.S. No.1131 of 2011 this Court directs the plaintiffs-petitioners to begin first and since the suit is of the year 2011, this Court further directs the Trial Court to complete the trial proceeding as expeditiously as possible, preferably within a period of six months from the date of communication of this Order.

10. Thus, the Civil Miscellaneous Petition stands dismissed for having no merit but with the directions as contained hereinabove. However, there shall be no order as to cost.

…………………….. Biswanath Rath, J.

Orissa High Court, Cuttack. The 13th day of November, 2015.