It is well known in civil cases that plaintiff is the master of the suit and he has to win the case on his own legs. It follows that since plaintiff comes up with a claim before the court, he owes the burden to prove the material particulars in his favour to get a decree passed. But Civil Courts are places of continuous learning and you never know what is about to come. One such situation that requires deliberation is “Whether Defendant can present his evidence before the plainitff’s in a civil suit? Through this article I will try to find out answer to this issue. So here we go.

Introduction- Right to Begin

Order 18 Rule 1 of the CPC recognizes the general rule that the plaintiff in a suit must prove his case. This is in consonances with Sections 101 to 114 of the Indian Evidence Act, 1872. It is evident that Section 101 of the Evidence Act[i] provides that 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.

Order 18 Rule 1 talks about 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[ii].

Rule 2 further provides that on the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. Then the other party shall state his case and produce his evidence (if any) and may then address the Court generally on the whole case. Then the party beginning may reply generally on the whole case.

It is clear that as a general rule the party which set up a claim must prove the burden cast upon him. The plaintiff has a right to begin and because the burden of proof rests upon one who pleads, it is for the plaintiff to lead evidence first.

Issue Addressed

Whether, the Trial Court can order the Defendant on an application made by the Plaintiff or Defendant or even suo motu under Order 18 Rule 1 or even under Order 18 Rule 2, to lead evidence first?

When Defendant has Right to Begin

The defendant is given “the right to begin” only in a situation where the facts alleged by the plaintiff are admitted but the plaintiff’s entitlement to relief is contested in law or on the basis of additional facts asserted by the defendant. The condition that the facts pleaded by the plaintiff must be admitted by the defendant is of great significance. It implies that[iii]:

• The facts necessary for proving the plaintiff’s case must be entirely or atleast very substantially, admitted by the defendant and;
• It is by reason of the defendant’s admission that the plaintiff is absolved from its duty to prove his case before the defendant is called upon to give evidence.

On a proper interpretation, the second part of Order 18 Rule 1 therefore is applicable in a situation where, but for the additional facts pleaded or legal defences raised by the defendant, the plaintiff would have been entitled to a decree upon admission. So 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

Let’s understand it through an example: Suppose there is a case of recovery of money under an agreement. The defendant made a part payment and the plaintiff sued for the balance. The defendant accepted and admitted the execution of the agreement as also the payment of part amount by two instalments. The defendant, however, alleged undue influence and coercion. Now, the defendant had the burden of proving this allegation.

• When the defendant pleads Additional Facts in his pleadings and an Issue is framed in this regard

In Sandip Sankarlal Kedia v Smt. Pooja Sandip Kedia[iv], it was held that:

Issues are framed on the basis of material proposition of facts and law admitted by one party and denied by other. It is upon the court to see what is admitted and denied and then proceed to frame the issues. The issue whose burden to prove is upon the defendant, then it would be for the defendant alone to lead evidence. The plaintiff would be required to give evidence, if at all, only after the defendant’s evidence is led. The defendant would have the obligation, responsibility, duty and liability to prove that material proposition or fact made by him as an additional fact in his written statement. It is this obligation, responsibility, duty and liability which is termed the “right” to begin. The expression “right to begin” in the sub title of Order 18 Rule 1 of the CPC and in its contents is, therefore, not a right such as a privilege which can be reserved or waived. It would have to be exercised if the additional fact alleged by the defendant upon which the issue has to be framed has to be proved by the defendant for the issue to be determined by the Court. It is, therefore, that this enjoinment is laid down in Order 18 Rule 2 of the CPC. In such a suit on the date of the hearing under that provision the Defendant who has “the right to begin” is enjoined to state his case and produce his evidence in support of the issue which he is bound to prove if he would want the plaintiff to get non suited. The expression “shall” in Order 18 Rule 2 of the CPC makes this abundantly clear. Hence Order 18 Rule 1 of the CPC lays down the situation in which the party would have a right (which is actually his obligation to begin his evidence.) Order 18 Rule 2 of the CPC lays down that party shall produce such evidence to prove an issue arising from the facts alleged by him.

• Where there are several issues and burden to prove some of them lies on the defendant (The issues can be of fact or mixed question of law and fact or pure question of law)

Order 18 Rule 3 of the CPC[v] deals with cases of several issues, the burden of proving some of them lies on one party and some on the other. The party beginning evidence is allowed to lead evidence only on those issues for which the burden lies upon him and reserve the evidence on the other issues by way of rebuttal to the evidence produced by the other party. Such party is then allowed to produce evidence on those issues after the other party has produced all his evidence. This specified procedure also reflects and manifests the need to give evidence as per burden which lies upon the party. It does not require only the Plaintiff to give all evidence first. In view of the fact that admitted facts need not require to be proved, no plaintiff need give evidence of any admitted fact. The distinction in the actual tendering of evidence, therefore, becomes very stark when one sees the case of many issues. After the Plaintiff has to lead evidence upon all the issues, the burden of which lies upon him to prove and not the other issues and the Defendant is enjoined to give evidence upon all the issues, the burden of which lies upon him to prove, allowing the Plaintiff the right of rebuttal thereafter. So this is a classical case where the defendant has right to begin evidence in relation to an issue or multiple issues whose burden to prove lies upon him.

• Where the case setup by the defendant if decided will completely dispose of the issues in the suit

Delhi High Court in Poonam Bhanot v Virendra Sharma and Ors.[vi], where the facts of s partition suit were something like this, defendant no. 1 did not deny the existence of a registered will dated 05.09.2014, by which all the parties, including the plaintiff, 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.

In view of the aforesaid facts 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, Delhi HC held that 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.

• Where the defendant claims existence of a will contrary to plaintiff’s plaint that the deceased died intestate

Hon’ble MP High Court in Sanjay Ingle and Anr v Panchfula Bai[vii], where the case was Plaintiffs had instituted a suit against the Defendants before the lower court seeking relief of declaration of title with regard to the suit property. They had also pleaded in their plaint that the suit property belonged to their late father who died intestate and that the defendants had no right, title and interest in respect of the suit property. Per contra, the Defendant had claimed that the late father of the Plaintiffs had left a Will. Considering the said submission, the trial court passed an order, thereby directing the Defendants to lead evidence before the Plaintiff to prove the existence of the Will. Aggrieved, the Appellants preferred an appeal, arguing that they should have been given the opportunity to lead evidence before the Defendants.

Examining the submissions of parties and documents on record, the Court concurred with the rationale of letting the Defendants lead the evidence first. Referring to Hindu Law by Sir Dinshaw Fardunji Mulla, the Court pointed out the two rules with respect to burden of proof vis-à-vis a Will i.e.:

• Onus probandi lies upon the party propounding a Will, and that they must satisfy the conscience of the court that the instrument so propounded is the last Will of free and capable testator;
• If a party writes or prepares a Will under which he takes a benefit, or if any other circumstances exist which excite the suspicion of the Court, and whatever there nature may be, it is for those who propound the Will to remove such suspicion, and to prove affirmatively that the successor knew and approved the contents of the Will and it is only where this is done that onus is thrown on those who oppose the Will to prove fraud or undue influence, or whatever they rely on to displace the case for proving the Will.

Thus, the Court agreed with the reasoning of the court below and held that impugned order was neither illegal nor arbitrary and held that when these rules of proving a Will are taken into consideration, then the order passed by learned Civil Judge when tested on the touchstone of the aforesaid rules cannot be said to be illegal or arbitrary because the defendants are staking their claim on the basis of a registered Will left by deceased Laxman has to prove their Will first and then only plaintiffs can be asked to discharge their burden.

• Partition Suit- Where every party to the suit is Plaintiff in respect of his share and defendant in respect of shares of others

In Vikram Kaushik & Anr. v Vivek Kaushik[viii]  wherein, in a partition suit, the defendant was required to lead the evidence first, as the ownership of the property by the predecessor in interest of the parties had been admitted. It was held that the defendant would then be required to first establish the additional fact pleaded by him that the property in question had been orally partitioned during the lifetime of the predecessor in interest. The facts show that the only disputed issues concerned the oral partition, which was asserted by the defendant. In any event, it is settled law that in a suit for partition, the status of the parties is not of great relevance, each party is a plaintiff in respect of their share of the suit property, and a defendant in respect of the shares of the others.

Once Order Sheet is drawn asking plaintiff to start his evidence, can defendant be asked at this stage to start his evidence first?

In Poonam Bhanot v Virendra Sharma and Ors,, 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. But the Hon’ble Delhi High 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 in the interests of justice.

An evidence is a statement of disputed material facts and nothing more. An evidence is not an essay. It does not require to bear an introduction, a main body and a conclusion. It only must show relevant disputed facts which the Court must appreciate to accept or reject such oral evidence. Hence recording of evidence requires the protocol under Order 18 Rule 1 of the CPC and the mandate under Order 18 Rules 1 and 2 of the CPC to be followed. The Courts, duty is, therefore, to see that it is so followed. The Court, therefore, has the power and the duty to pass directions upon the application of any of the parties as also by itself upon considering the separate averments of the parties in the pleadings to efficiently direct the order of leading of evidence as the legislated discipline of work.

When Defendant can’t be asked to lead his evidence first

• When Defendant doesn’t admit the facts pleaded by the plaintiff

This issue was considered by Hon’ble Delhi High Court in Sabiha Sultana & Ors. v Ahmad Aziz & Anr.[ix], wherein this Court relied upon several authorities to hold that in the absence of admission of facts pleaded by the plaintiff, asking the defendant to lead evidence first could well be disadvantageous to the defendant. Paragraph 8 of the judgment, to that effect, is reproduced below:

“In terms of the procedure stipulated in CPC, it is clear that as a general rule the party which set up a claim must prove the burden cast upon it. The plaintiff has a right to begin and so he must because the burden of proof rests upon one who pleads. It is for the plaintiff to lead evidence first. It is only when the defendant admits to the facts pleaded by the plaintiff that the latter would be relieved of this burden, but in the absence of any such admission, asking the defendant to lead evidence first could well be disadvantageous to the defendant. Order 18 Rule 1 of CPC prescribes “right to begin” the recording of evidence wherein the plaintiff would lead evidence first but the defendant may be permitted to lead evidence if after having admitted to the facts pleaded by the plaintiff, he so seeks to do. In the absence of these two qualifying circumstances, the Court would not direct the defendant to lead evidence first.”

Similarly the Hon’ble Delhi High Court in Rajnish Gupta v Mukesh Garg[x] observed that “plaintiff has a right to begin and so he must because the burden of proof rests upon one who pleads. It is for the plaintiff to lead evidence first. It is only when the defendant admits to the facts pleaded by the plaintiff that the latter would be relieved of this burden, but in the absence of any such admission, asking the defendant to lead evidence first could well be disadvantageous to the defendant. As per Order 18 Rule 1 of the CPC, it is the general rule that the plaintiff must lead evidence first, however, when the defendant admits to the facts pleaded by the plaintiff, the plaintiff could be relieved of such burden.”

• When Defendant admits the facts pleaded by the plaintiff but not the material facts

The judgment of Orissa High Court in Mirza Niamat Baig v Sk. Abdul Sayeed[xi], indicates that the facts admitted by the defendant must include all the material facts. Paragraphs 4 and 5 of the said judgment are reproduced below:

“The law is well settled that a person who sets the law in motion and seeks a relief before the Court, must necessarily be in a position to prove his case and get the relief moulded by the law. 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, CPC, 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.

• In Defamation case until and unless defendant accepts that the contents of article constitutes libel, he can’t be compelled to adduce evidence first

Division Bench of Orissa High Court in Balakrishna Kar v H. K. Mahatab[xii], wherein the Court overturned the order of the Trial Court placing the burden upon the defendant to lead evidence first in a defamation suit. The Division Bench held that the admission of publication of the allegedly defamatory articles was insufficient for this purpose as the defendant had not admitted that the articles constituted libel on the character of the plaintiff. It was held that in such circumstances, the onus lies on the plaintiff to establish his case.

Provision is an Enabling one and Defendant can’t be compelled to begin evidence

In Bhagirath Shankar Somani v Rameshchandra Daulal Soni[xiii], the Court concluded that if the defendant decides to lead evidence first and is so permitted by the Court, the plaintiff can always lead evidence in rebuttal. The trial Court does not have the power to issue a direction to the defendant compelling him to lead his evidence before the plaintiff adduces his evidence under Order 18, Rule 1. Only when the defendant claims a right to begin under Rule 1 and the plaintiff disputes existence of such right, the Court will have to decide the question whether, the defendant has acquired a right to begin.

Hon’ble Court in Dattatray Namdeo Patil v Ram Namdeo Patil[xiv], dealt with a similar issue and concluded in paragraphs 3 and 4 that Rules 1 and 2 of Order 18 of the Code of Civil Procedure would entitle the defendant, who admits the fact, to begin the recording of his evidence first. It is an enabling provision. If the defendant applies and makes a request or claims such a right, the Court may pass an order permitting the defendant to step into the witness box first.

In Metafield Coil Private Limited v Nikivik Tube Industries Private Limited[xv], while considering such an issue under Order 18, Rule 1, the Court concluded that a consistent view taken by the Courts is that a direction against the defendant to lead evidence before the plaintiff leads his evidence, cannot be issued under Order 18, Rule 1. The scheme of law appears to be that of a normal rule and it would be a privilege of the plaintiff to lead his evidence first. However, it enables the defendant to exercise the right in the contingency mentioned in the rule. After the plaintiff exercises his option to lead evidence first, it is for the defendant to decide whether, he would like to lead evidence and make such a formal request to the Court. If the Court permits the defendant to lead evidence first, the plaintiff can always lead evidence in rebuttal. The Court does not have the power to issue a direction to the defendant so as to compel him to step into the witness box first and lead evidence.

In Haran Bidi Suppliers and Another v M/s. V.M. & Co., Bhandara[xvi], the Hon’ble Court has considered the scope of Order 18 Rule 1 and has concluded that it is an enabling provision, which may entitle the defendant to make a request to the Trial Court to begin first. It was, therefore, interpreted that the Trial Court may consider the request of the defendant to begin first and would then hold, if the plaintiff does not oppose, that the right to begin will be of the defendant.

Hon’ble Gujarat High Court in the case of Keshavlal Durlabhasinbhai’s Firm v Shri Jalaram Pulse Mills[xvii], has opined that the provision is enabling one entitling the defendant of right to begin, however, nothing in the provision confers any power on the Court under this rule to direct the defendant to adduce evidence first in the suit if the defendant himself is not claiming such right in view of the contingencies mentioned in rule 1.

The case of Bhagirth Shankar Somani v Rameshchandra Daulal Soni[xviii], has dealt with the question in detail and these observations were made:

The consistent view taken by this Court is that a direction against the Defendant to lead evidence before the Plaintiff leads his evidence cannot be issued under sub rule 1 of Order 18 of the CPC. The scheme of Rule 1 appears to be that as a normal Rule it is the privilege of the Plaintiff to lead his evidence first. However, it enables the Defendant to exercise the right in the contingency mentioned in the Rule. The Plaintiff in a given case can make a statement before the trial Court stating that as the case is covered by exception in Rule 1 of Order 18 of the said Code, he is reserving his right to lead evidence in rebuttal after the Defendant leads his evidence. The said option can be exercised in mofussil courts by the Plaintiff by filing a pursis (Pursis is written statement /information given to the court pertaining to any matter pending before it which may include information/ facts/ joint statement/ compromise/ settlement/ no instruction from a party etc with the intent to put the same before the court for its consideration in any proceeding)[xix] to that effect. In a Court in which there is no practice of filing pursis, the Plaintiff can make oral statement to that effect which will be normally recorded in the roznama (Ordersheet) of the case. After the Plaintiff exercises option it is for the Defendant to decide whether he wants to lead the evidence. If the Defendant decides to lead the evidence, the Plaintiff can always lead evidence in rebuttal. The Court has no power to issue a direction to the Defendant compelling him to lead his evidence before the Plaintiff adduces his evidence. Only when the Defendant claims right to begin under Rule 1 and the Plaintiff disputes existence of such a right, the Court will have to decide the question whether the Defendant has acquired a right to begin.

Where the Plaintiff doesn’t like to Begin

In Shivaji Laxman Palaskar v Kamal Raosaheb Shipalkar[xx], the procedure was provided where the plaintiff doesn’t want to begin and burden to prove an issue or issues lied on the defendant. It was stated that in a given case, the plaintiff may enter a purshis to state that the onus and burden of proving any issue has not been cast on him and therefore, he would not like to begin. After such a purshis is entered and upon verifying the issues, if the court is convinced that the plaintiff does not desire to lead any evidence as no burden is cast on him, the court may record such a contention and then, the defendant could step into the witness box and lead evidence. However, the court cannot exercise the jurisdiction to entertain the prayer of the plaintiff on an application to pass a judicial order directing the defendant to lead evidence first. The court can only entertain the purshis of the plaintiff stating that he does not desire to lead evidence as no burden is cast on him and if convinced, the court may accept the purshis and give liberty to the defendant to lead evidence first.

It has to be noted that court can only give liberty to defendant to lead his evidence first. Court can’t compel him to start with the evidence as already we have discussed above that this provision is only an enabling one. If the defendant doesn’t take the opportunity to start with the evidence then plaintiff has to start with his evidence.

Conclusion

In view of the above, it is no longer res integra that the court generally does not have the power under Order 18 Rule 1, much less, under Order 18 Rule 2 to entertain an application of the plaintiff for issuance of directions to the defendant to lead evidence first. The right to begin will always be with the plaintiff unless the defendant makes a request to the court that he would like to exercise the right to begin before the plaintiff steps into the witness box and in which case, an application by the defendant could be considered if the plaintiff has any objection, thereby, inviting a judicial order. In short, the defendant may have the liberty to claim the right to begin.[xxi]

On the plain language of Order 18 Rule 1 CPC, it appears that it is only an enabling provision entitling the defendant of right to begin. This provision cannot to interpreted to mean that the Court would be competent to direct the defendant to enter the witness-box before the plaintiff and lead evidence in support of its case.[xxii]

Needless to state that the procedure under Order 18 Rules 1 and 2 of the CPC is not empty formality. It is for true and clear management and administration of the case before the Court. It is for leading only the most relevant and necessary evidence by the party upon whom the burden of proving an issue, upon his own allegations denied by the other party, lies.

[i] https://indiankanoon.org/doc/147127/

[ii] https://lawrato.com/indian-kanoon/cpc/order-18

[iii] Om Prakash v Amit Choudhary & Ors on 25 July, 2019, CM(M) 282/2019 & CM APPL. 7818/2019, Del HC

[iv] MANU/MH/1975/2013, AIR 2014 Bombay 26

[v] https://www.writinglaw.com/order-18-rule-3-cpc/

[vi] 2022 LiveLaw (Del) 721

[vii] 2022 LiveLaw (MP) 264

[viii] (CS (OS) No. 1848/2009, decided on 13.12.2011); (See Chandramohan Ramchandra Patil and Ors. vs. Bapu Koyappa Patil (Dead) Through LRs and Ors. (2003) 3 SCC 552, [Paragraph 13]; Loke Nath Saha and Ors. vs. Radha Gobinda Shaha and Ors. AIR 1926 Cal 184, [Paragraph 2]; Mahender Kr. Lamba vs. Satender Prakash Lamba (2007) 99 DRJ 288, [Paragraph 47]).

[ix] (CS(OS) 2958/2011, decided on 31.08.2017)

[x] [CS(OS) 332/2021] on 23.02.2022

[xi] 2008 (II) OLR 566

[xii] AIR 1954 Ori 191

[xiii] 2007 (5) Mh.L.J. 508: 2007 (4) ALL MR 514

[xiv] 2010 (3) Mh.L.J. 801

[xv] 2012 (1) Mh.L.J. 289

[xvi] MANU/MH/0912/2000: 2001 (4) Mh.L.J. 112

[xvii] MANU/GJ/0168/1995: AIR 1995 Guj 166

[xviii] MANU/MH/0306/2007: 2007 4 All Mr. 614

[xix] https://taxguru.in/corporate-law/legal-term 

[xx] Writ Petition No. 12117 of 2018, Decided On: 01.11.2018

[xxi] Writ Petition No. 12117 of 2018, Shivaji Laxman Palaskar  v  Kamal Raosaheb Shipalkar

[xxii] MANU/MH/0912/2000: 2001 (4) Mh.L.J. 112

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ABOUT THE AUTHOR

Harshit Sharma

Harshit is a Civil Judge-cum-JMFC at Rajasthan Judicial Services, and a doctoral candidate (Ph.D.) at NLU Jodhpur. He can be reached at harshitsharmanluj@gmail.com.