who has to begin -Mere admission of execution of a document does not amount to admission of the nature of the document.- whether the document dated 09.7.2000 is an agreement of sale or a deed of security. In order to succeed the suit, the plaintiff has to prima facie establish that the document dated 09.7.2000 is an agreement of sale. If the plaintiff discharges the burden of proof cast on him, the onus of proof shifts on the defendant to establish that the document dated 09.7.2000 is not an agreement of sale and it is only a deed of security. This is the real test to be followed by the trial court before directing the one of the parties to the suit to begin the trial.

HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY          

CIVIL REVISION PETITION No.3262 of 2013  

10-03-2017

K.Arjuna Rao, S/o.Parasuramaiah  Revision Petitioner/Defendant

Katuru Yeukondalu, S/o.Parasuramaiah  Respondent/Plaintiff

Counsel for revision petitioner:Sri P.Gopal Das

Counsel for respondent:Sri Srinivas Emani

<GIST:

>HEAD NOTE:  

? CASES REFERRED:    

1)1996 (3) Civil LJ 135 (Kerala)
2)AIR 1957 Pat 145
3)AIR 1979 Pat 174
4)AIR 1995 Guj 166
5)AIR 1964 SC 136
6)AIR 1996 Mad 408
7)AIR 2004 Mad 243
8)2008 (6) ALT 314
9)2001 (4) CCC 415 (Bom.)

THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY        

CIVIL REVISION PETITION No.3262 OF 2013    

ORDER:        
        This civil revision petition is filed under Article 227 of the
Constitution of India challenging the order dated 12.6.2013 passed
on Memo in O.S. No.28 of 2006 on the file of the Court of Junior
Civil Judge, Gannavaram.
2.      The petitioner is the defendant and the respondent is
plaintiff in O.S. No.28 of 2006.  For the sake of convenience, the
parties are hereinafter referred to as they are arrayed in the suit.
3.      The plaintiff filed the suit for specific performance basing on
the agreement of sale dated 09.7.2000 and consequential
perpetual injunction.  The defendant filed written statement
denying the very nature of the document dated 09.7.2000.  The
plaintiff filed Memo before the trial court with a prayer to direct the
defendant to begin the trial for which the defendant filed
objections.  However, the trial Court over-ruled the objections and
directed the defendant to begin the trial.  Hence, the defendant
filed the present revision petition.
4.      The contention of learned counsel for the petitioner-
defendant is four fold: (1) the finding of the trial court that the
defendant admitted execution of the document, therefore he has to
begin the trial, at the first instance, is factually incorrect and
legally unsustainable; (2) when the burden of proof lies on the
plaintiff in respect of some of issues, the trial court ought not to
have directed the defendant to begin the trial; (3) the trial court
failed to consider that the defendant has been disputing the very
nature of the document dated 09.7.2000; and (4) Order XVIII Rule
1 of CPC confers a right on the defendant to begin the trial if he/
she so wishes and there is no obligation on the part of the
defendant to begin the trial. Per contra, learned counsel for the
respondent-plaintiff submitted that having admitted the execution
of the document dated 09.7.2000, the burden of proof lies on the
defendant to establish that the said document is not legally
enforceable.  He further submitted that the burden of proof lies on
the defendant on the main issue; therefore he has to begin the
trial. He also submitted that there are no grounds, which warrant
interference with the impugned order passed by the trial court.
5.      The edifice of civil suit is built on pleadings.  Pleadings form
bedrock in a civil suit.  Order VI of CPC deals with pleadings. The
word pleading encompasses in it all material facts, which give rise
for cause of action.  Pleading is nothing but a precise statement of
material facts. It is the primary duty of the plaintiff to plead all
material facts and if such facts are proved, he is entitled for the
relief sought.  In view of the provisions of Order VII of CPC, a duty
is cast on the defendant to specifically deny or traverse the
material facts pleaded by the plaintiff.  Mere or general denial of
the pleadings by the defendant itself is not sufficient to demolish
the case of the plaintiff. The defendant has to specifically deny the
material facts pleaded in the plaint in order to substantiate his/her
stand.  It is needless to say that any amount of oral or
documentary evidence, without a pleading, is of no avail.
6.      Order XIV of CPC deals with framing of the issues.  While
framing the issues the court has to keep in mind the scope of
Order XVIII Rule 1 of CPC.  The underlying object of Order XIV of
CPC is mainly to focus on the lis involved in the suit, which is the
basis for framing of the issues for adjudication, thereby to enable
the parties to adduce evidence to substantiate their stand.  A
perusal of Order XVIII Rule 1 of CPC clearly demonstrates that, as
a general rule, the plaintiff has the right to begin the suit,
exception is the right of the defendant to begin.  Who has to begin
the suit depends upon the facts and circumstances of each case.
There is no obligation on the part of the defendant to begin the suit
first.  Though Order XVIII Rule 1 of CPC does not obligate the
defendant to begin the trial, the defendant has to come into the
witness box at the first instance, if the burden of proof lies on him
on all the issues.  Even when burden of proof lies on the defendant
on the main issue, he has to begin the trial, though the burden of
proof on the other issues lies on the plaintiff.  However, Rule 3 of
Order XVIII of CPC enables the party who begins the suit to reserve
his or her right to adduce rebuttal evidence.
7.      It is needless to say that Sections 101 to 104 of the Evidence
Act deal with burden of proof.  It is a settled principle of law that
burden of proof lies on the person, who would fail if no evidence is
adduced on either side.  The burden of proof is always static and
does not shift.  If the plaintiff discharges the burden cast on him,
the onus of proof shifts on the defendant to substantiate the stand
taken by him.  The onus of proof shifts from one party to the other
party depending upon facts and circumstances of each case.  If
both parties adduce evidence, the onus of proof loses its
significance.  The basis to begin the suit depends upon whom the
burden of proof lies on the main issue.
8.      In view of the principles enunciated in Chandralatha v
Annamallai Finance Ltd. , Ramesh Chandra v H.D. Jain College ,
Ram Narain Prasad v Seth Sao  and Keshavlal Durlabhasinbhais
firm v Shri Jalaram Pulse Mills , the defendant has to begin the suit
in the following circumstances: (1) if the defendant unconditionally
admits the material facts pleaded by the plaintiff, (2) when any fact
is especially within the knowledge of the defendant in view of
Section 106 of the Indian Evidence Act, (3) when the defendant
pleads certain additional facts, and (4) if the defendant denies the
suit claim, such denial is without any substance, in view of the
other admitted facts.
(1) In Addagada Raghavamma v Addagada Chenchamma , the    
Honble Supreme Court held at paragraph No.15 (Manupatra) as
follows:
15.   There is an essential distinction between burden of
proof and onus of proof; burden of proof lies upon the
person who has to prove a fact and it never shifts, but the
onus of proof shifts. The burden of proof in the present case
undoubtedly lies upon the plaintiff to establish the factum
of adoption and that of partition. The said circumstances do
not alter the incidence of the burden of proof. Such
considerations, having regard to the circumstances of a
particular case, may shift the onus of proof. Such a shifting
of onus is a continuous process in the evaluation of
evidence.
(2) In Chinnayyan v Jayaraman , the Madras High Court held at
Paragraph No.7 (Manupatra) as follows:
7.   Having thus considered the two reliefs, viz., the
relief claimed in the suit as well as the counter-claim made
in the written statement, with reference to the pleadings of
the both the parties, it is all well to say that both the reliefs
are different and distinct and the plaintiff and the defendant
are put on separate onus to prove the said reliefs by
adducing legal evidence. But, however, pursuant to the
Order 18, Rule 1 of the Code of Civil Procedure, since the
plaintiff has come forward with the suit with a specific relief,
it is for him to discharge his onus first and then, the
defendant is entitled to adduce rebuttal evidence, which may
sometimes or if allowed by the trial Court, include the first
issue framed for the purpose of trial regarding the counter-
claim made in the written statement.
(emphasis supplied)
9.      To substantiate the argument, learned counsel for the
plaintiff has relied upon the judgment in Mrs.Bama v Rukiyal Bivi ,
wherein the Madras High Court held at paragraph No.6 as follows:
6.   If the defendant admits material allegations in the
plaint, the defendant may begin. However, the plaintiff must
prima facie satisfy that there are reasons to believe that
particular thing is within the knowledge of the defendant.
10.     The learned counsel for the defendant submitted that in a
civil suit, evidence has to be recorded in a comprehensive manner
touching all the issues but it cannot be split issue-wise. He further
submitted that the defendant never admitted execution of
agreement of sale dated 09.7.2000 and hence no legal obligation is
cast on him to begin the trial.  In support of his contentions, he
has drawn attention of this court to the following decisions:
1)      Sundaragiri Ramulu v Sundaragiri Siddi Rajaiah @ Siddi Raju ,
wherein this court held at Paragraph Nos.4 and 5 as follows:
4. In a suit for partition, the burden squarely rests upon the
plaintiff, not only to prove, that the suit schedule property
is liable to be partitioned, but also to establish his
entitlement for a share, in it. The denial by the defendant,
in such a suit, of any plea raised by the plaintiff, would only
lead to a necessity, to undertake trial. The mere fact that
the defendant had pleaded prior partition of the properties,
does not alter the sequence, provided for, under
Order 18 C.P.C.
5. The contention of the petitioner, that the respondent
must be required to discharge his burden, as regards issue
No. 1, is equally untenable. Issues are framed by the Trial
Court, based upon the pleadings of the parties. While the
burden to prove some issues may rest upon the plaintiff,
the one, as regards the others, may be upon the defendant.
The evidence in a suit is adduced by the parties, and
recorded by the trial Court, in a comprehensive manner,
touching all the issues. The evidence that is adduced by a
party, would take care, not only of the issues, on which the
burden is upon him, but also, those, as regards of which,
the burden is, on the other party. Oral or documentary
evidence cannot be split, with reference to each issue.
Therefore, the application filed by the petitioner was
untenable, and the Trial Court had rightly dismissed it.
2)      Haran Bidi Suppliers v M/s.V.M. & Co. , wherein Bombay
High Court held at Paragraph Nos.2, 3 and 4 as follows:
2.   The only reason indicated in the said order is that
burden is cast on the plaintiff to prove only four issues out
of total 14 issues and, therefore, the defendants have been
directed to enter the witness-box.  According to the non-
applicant/plaintiff, the said order was in terms of Order 18
Rule 1. Order 18 Rule 1 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.
3. On the plain language of the said provisions, it would
appear that it is only an enabling provision entitling the
defendant of right to begin.  In my view, this provision
cannot be 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.
In the circumstances, the impugned order passed by the
Trial Court cannot be sustained in law.
11.     Let me consider the facts of the case on hand, in the light of
the above legal principles.  Basing on the pleadings of both parties,
the trial court framed the following issues:
1) Whether the agreement of sale deed dated 09.7.2006 (sic,
2000) was executed as a security for payment of
Rs.10,000/- by the defendant?
2) Whether the plaintiff is in possession and enjoyment of
the plaint schedule property?
3) Whether the suit is bad for non-joinder of proper and
necessary party?
4) Whether the plaintiff is entitled to specific performance of
agreement of sale dated 09.7.2000 as prayed for?
5) Whether the plaintiff is entitled to injunction as prayed
for?
6) To what relief?
12.     Issue Nos.1 and 4 are interrelated to each other.  Issue No.4
is the main issue in the suit when compared to issue No.1.  On
issue Nos.2, 3 and 4, the burden of proof lies on the plaintiff.  It is
the case of the plaintiff that the defendant executed the agreement
of sale in his favour on 09.7.2000.  It is the case of the defendant
that he executed a document dated 09.7.2000 as a security and
not the agreement of sale. The defendant specifically and
unequivocally denied that he never executed agreement of sale.
The plea of the defendant is that he executed a deed as a security
and not the agreement of sale.  A perusal of the written statement
prima facie reveals that the defendant has been challenging the
very nature of the agreement of sale. The very basis for the plaintiff
to file the suit is the document in question dated 09.7.2000.  The
defendant never admitted the document in question as an
agreement of sale, as pleaded by the plaintiff.  Mere admission of
execution of a document does not amount to admission of the 
nature of the document. The real controversy between the parties
in the suit is whether the document dated 09.7.2000 is an
agreement of sale or a deed of security.  In order to succeed the
suit, the plaintiff has to prima facie establish that the document
dated 09.7.2000 is an agreement of sale.  If the plaintiff discharges
the burden of proof cast on him, the onus of proof shifts on the
defendant to establish that the document dated 09.7.2000 is not
an agreement of sale and it is only a deed of security. This is the
real test to be followed by the trial court before directing the one of
the parties to the suit to begin the trial.
13.     The learned counsel for the plaintiff strenuously submitted
that the defendant admitted the execution of the document;
therefore he has to begin the trial.  The finding of the trial court is
that the defendant himself admitted execution of the document
dated 09.7.2000; therefore, he has to begin the trial.
14.     The trial court, in its order, made the following observation,
No doubt with regard to the hearing of 1st issue the burden rests on
the plaintiff.  Unless the defendant discharges his prima facie
burden of proving alleged execution of said agreement of sale as a
security, it may be held, the burden will be shifted to the plaintiff.
As such the direction can be given to the defendant to commence the
trial, in view of the discussion and objections made supra. A
perusal of the extracted portion gives an impression even to an
ordinary prudent man that the burden of proof of lies on the
plaintiff on issue No.1.        Whether the trial court is justified in
directing the defendant to begin the trial, having come to such a
conclusion, is one of the points to be considered by this court.  By
overruling the objection of the defendant on the Memo, though not
directly by necessary implication, the trial court has accepted the
contention of the plaintiff that the document dated 09.7.2000 is an
agreement of sale and not a security bond, even before
commencement of trial, which is impermissible under law.  The
finding of the trial court, as referred supra, is contrary to Order
XVIII of CPC.  Had the defendant admitted the execution of
agreement of sale dated 09.7.2000, the burden of proof lies on
the defendant, but, the defendant denied the very nature of the
document itself.  Since the defendant denies the very nature of the
suit document itself, the burden of proof of lies on the plaintiff that
the suit document is an agreement of sale dated 09.7.2000
executed by the defendant.  Once the plaintiff discharges the
burden of proof cast on him then only the onus of proof shifts on
the defendant to prove his stand.  Leave that apart, the trial court
has not considered the scope of issue No.4, which is the core issue
in the suit. Undoubtedly, the burden of proof lies on the plaintiff
on issue No.4.  Though issue Nos.2 and 3 are ancillary to issue
No.4, the burden of proof lies on the plaintiff on these two issues.
Out of four issues framed by the trial court, the burden of proof
lies on the plaintiff on three issues, which includes the core issue.
In such circumstances, directing the defendant to begin the trial is
contrary to Order XVIII Rule 1 of CPC and Sections 101 to 104 of
Indian Evidence Act.  The trial court has not expressed any opinion
on whom the burden of proof lies on issue Nos.2, 3 and 4.
15.     Having regard to the facts and circumstances of the case and
also principle enunciated in the cases cited supra, the Memo filed
by the plaintiff is not sustainable either on facts or in law.  While
exercising the jurisdiction under Article 227 of the Constitution of
India, this court can interfere with the order passed by the trial
court when there is illegality or irregularity apparent on the face of
the record.  If the order of the trial court is allowed to stand,
certainly it would amount to miscarriage of justice. Hence, it is
liable to be set aside.
16.     In the result, the civil revision petition is allowed, setting
aside the order dated 12.6.2013 passed on Memo in O.S. No.28 of 
2006.  Consequently, the Memo filed by the plaintiff in O.S. No.28
of 2006 on the file of the Court of Junior Civil Judge, Gannavaram
is hereby rejected.  Miscellaneous petitions, if any pending in this
civil revision petition shall stand closed.
 ____________________________  
T.SUNIL CHOWDARY, J.    
Date: 10.3.2017

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