When Defendant Can Be Asked To Begin Evidence In Suit? Supreme Court Explains Order XVIII Rule 1 CPC

In a recent judgment, the Supreme Court explained the circumstances under which a defendant gets the right to begin in a suit hearing as per Order XVIII Rule 1 of the Civil Procedure Code.

As per the CPC, the plaintiff has the right to begin. However, if the defendant admits the facts alleged by the plaintiff and argues that plaintiff is no entitled to relief due to certain additional fact or any point of law, then the defendant gets the right to begin.

A bench comprising Justice JB Pardiwala and Justice R Mahadevan was hearing an appeal filed by a plaintiff in a specific performance sought who sought that the defendant should begin, since he admitted the existence of the agreement. The High Court and the Trial Court had rejected the plaintiff's prayer by holding that the defendant, though admitted the agreement, took the plea that it was a sham transaction. Hence, the Courts were of the view that the defendant's stand cannot be construed as an admission as such.

While agreeing with the view of the High Court, the Supreme Court expounded the law on the subject.

"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."

Referring to Section 102 of the Evidence Act, as per which the burden of proof is on the person who would fail if no evidence was adduced, the Court said :

"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."

'Hearing' of a suit  not the trial of the suit

The Court observed that 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."

No Party can insist that other party should be asked to begin first

The Court further explained :

"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 are designed and directed to achieve and secure ends of justice."

With these observations, the appeal was disposed of.

Case : Jami Venkata Suryaprabha and another v. Tarini Prasad Nayak and another

Citation : 2024 LiveLaw (SC) 1015

Click here to read the judgment