Order 18 Rule 1 CPC | Defendant May Be Asked To Lead Evidence First If Case Set Up By It Is Such That Proving It Would Decide All Issues In Suit: Delhi HC

The Delhi High Court has held that the Court has the authority to give necessary directions under Order 18 Rule 1 CPC on the procedural aspect as regards which party will lead evidence first. The bench further noted that correction of a procedural order was an inherent power of the court and may be corrected ex debito justitiae to prevent the abuse of its process.

Justice Mini Pushkarna said,

"The unequivocal position that emerges is that if the defendants set up a case, which if decided, would decide the issues raised in the suit completely, then the defendants can be directed to lead evidence first under Order 18 Rule 1 CPC."

The bench further rejected the contention of defendant that the order by which directions were given to the plaintiff to lead evidence first, has attained finality in the absence of any appeal against thereto. It observed,

"The directions as regards the filing of list of witnesses and evidence by way of affidavit, is in the nature of a procedural order...Correction of a procedural order is an inherent power and may be corrected ex debito justitiae to prevent the abuse of its process."

The case pertains to property dispute between siblings following the death of their father. It was claimed by the plaintiff that the parties to the suit who were all legal heirs of the deceased were in joint possession of his properties. However, the defendant 1, who was the brother of the plaintiff, stated that there was an unregistered will drawn by father of the parties, by which their father had left his residential property and a commercial flat to him exclusively. The submission of the plaintiff was supported by defendants 2 and 3 (who were both sisters of the parties).

The plaintiff filed the present application under Order 18 Rule 1 CPC praying that the defendants 2 and 3 be called upon to lead their evidence first. The defendant 1 opposed the application on the ground that the claim made by the plaintiff in the suit had not been admitted by the defendant in his written statement. Therefore, the onus lied upon the plaintiff to establish her case. It was also submitted that the defendant no. 2 and 3 could not be allowed to begin the recording of the evidence prior to the plaintiff, since plaintiff had to be examined first to prove her case.

The counsel appearing on behalf of defendants 2, 3 and 4 had supported the application of the plaintiff. He submitted that the Court could direct who will begin the evidence and that provisions of Order 18 Rule 1 CPC do no curb the power of the Court in this regard. He further contended that in a suit for partition, every claimant was a plaintiff, therefore, strict distinction could not be made in a suit for partition as regards the plaintiffs and defendants.

The court noted that defendant no. 1 did not deny the existence of a registered Will dated 05.09.2014, by which all the parties, including the plaintiff herein, were bequeathed shares in the properties owned by their father. The defendant no. 1 in his written statement had put up a case that their father revoked his earlier registered Will dated 05.09.2014 by a subsequent Will dated 12.07.2016, which was unregistered, by which he had bequeathed the properties in Model Town and Gurgaon in his favour.

Thus, the Court said that the defendant no. 1 has admitted to the existence of the registered Will dated 05.09.2014, by which the plaintiff had also got certain shares from the properties, which are subject matter of partition in the present suit, which as per defendant no. 2 to 4 is the last Will of the father of the parties, though as per defendant no. 1, the same has been revoked. In view of the aforesaid, the Court said that the defendants have set up a case, which if proved, would decide the issues raised in the suit itself

The court took into account the judgement of Achala Mohan Vs Jayashree Singh, where it was held that if a defendant sets up a case, the proving of which, would completely decide the issues which have been raised in the suit itself, then the Defendant under Order XVIII Rule 1 CPC can be directed to lead evidence first.

The defendant no. 1 contended that the court, via its 2019 order, had directed the plaintiff to lead evidence first. He further submitted that the said order had attained finality in the absence of any appeal against the same. Here the court noted that the directions as regards the filing of list of witnesses and evidence by way of affidavit were in the nature of a procedural order. Further, Order 16 CPC deals with summoning and attendance of witnesses, which are procedural in nature. Therefore, the court opined that it had the authority to give necessary directions under Order 18 Rule 1 CPC on the procedural aspect as regards which party will begin the evidence. 

Thus, the court opined that this was an appropriate case where the defendants should lead the evidence first. It was accordingly directed that defendants 2 to 4 will lead their evidence first followed by evidence of defendant no. 1. 

CASE TITLE: SMT. POONAM BHANOT v. VIRENDER SHARMA & ORS.

Citation: 2022 LiveLaw (Del) 721

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