Karnataka High Court Quashes Trial Court Order; Right To Lead Evidence First Rests With Plaintiff Even When Some Issues Burden Defendant
Isabella Mariam
The High Court of Karnataka, Single Bench of Justice S. Vishwajith Shetty set aside an order of the Principal Senior Civil Judge and CJM, Mangaluru, which had directed the defendant to lead evidence before the plaintiffs in a family partition suit. The Court observed that in cases where multiple issues are framed, the right to lead evidence rests with the plaintiff, even when the burden of proving certain issues lies on the defendant. It further clarified that a plaintiff who wishes to reserve the right to present rebuttal evidence after the defendant has led his evidence may request permission from the court, though it remains the defendant’s prerogative to decide whether to begin his evidence. The Court directed the trial court to expedite the suit’s disposal.
The writ petition was filed by the defendant in a pending partition suit before the civil court at Mangaluru, seeking to set aside an order dated 10 November 2021. The underlying suit involved a claim by the plaintiffs for partition and separate possession of the suit schedule ‘A’ property, asserting entitlement to one-fifth share each. The defendant opposed the claim and submitted that the father of the parties had executed a will dated 11 November 2007 bequeathing plaint item No.3 in his favour.
During trial, the plaintiffs filed a memo stating that they had no evidence to lead at that stage and sought permission to reserve their right to lead rebuttal evidence while requesting that the defendant be directed to lead his evidence. The defendant filed objections, contending that the burden to prove issues concerning entitlement to shares and rendition of accounts rested solely on the plaintiffs. He further argued that only the issue regarding the will required the defendant to lead evidence, and therefore the plaintiffs could not avoid leading their primary evidence. The trial court nevertheless treated the plaintiffs’ evidence as “nil for the time being,” subject to their right to lead rebuttal evidence, and called upon the defendant to begin. The defendant challenged this order under Article 227 of the Constitution of India.
The High Court noted that the trial court had framed four issues. The burden to prove issue Nos.1 and 3 was on the plaintiffs, while issue No.2, concerning the proof of the will, was on the defendant. The petition challenged the legality of the trial court’s acceptance of the plaintiffs’ memo and the direction requiring the defendant to lead evidence first in respect of all issues. The matter was heard with both sides advancing submissions on the scope of Order XVIII Rules 1 and 3 of the Code of Civil Procedure.
Justice S. Vishwajith Shetty observed that “Order XVIII Rule 1 would go to show that the said Rule recognizes that ordinarily it is the plaintiff who has a right to begin by leading his evidence and the only exception would be where 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, that the plaintiff is not entitled to any part of the relief which he seeks.”
The Court recorded that “in the present case, there are multiple issues and therefore Order XVIII Rule 3 of CPC would be applicable.” It noted that this provision gives the plaintiff an option to “either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party.” Thus, “when the plaintiff exercises such option, he can adduce the evidence on the said issues by way of rebuttal after the defendant has produced his evidence.”
Further explaining the principle, Justice Shetty stated, “From a plain reading of Rule 1 and 3 of Order XVIII it is clear that in a case which falls under Rule 1 normally it is for the plaintiff to lead his evidence first… In a case where plaintiff intends to reserve his right to lead evidence in rebuttal after the defendant leads his evidence, he can always make such a request to the Court, but then it is for the defendant to decide whether he wants to begin with the evidence.” The Bench held that “when there are several issues in a case, in respect to the issue where the burden is on the defendant to prove, the plaintiff can exercise the option as provided under Rule 1. However, in respect to the other issues the right to lead the evidence is always on the plaintiff.”
The Court referred to the decision of the Bombay High Court in Bhagirath Shankar Somani v. Rameshchandra Daulal Soni and stated, “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 XVIII of the said Code.” It noted that “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,” and 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.”
Concluding, the Court recorded that “I am in complete agreement with the law laid down by the Bombay High Court in the case of Bhagirath Shankar Somani (supra).”
The Court ordered: “Writ petition is allowed. The impugned order dated 10.11.2021 passed in O.S.No.193 of 2019 by the Court of Principal Senior Civil Judge and CJM, Mangaluru, D.K. District, is set aside. The plaintiffs shall begin their evidence on all issues except issue No.2 and in the event plaintiffs make a request to lead rebuttal evidence on issue No.2 after the defendant leads evidence on the same, the trial Court shall consider the same in light of observations made in this order. It is needless to state that since the suit is of the year 2019, the trial Court shall make endeavours to dispose of the suit as expeditiously as possible. Pending applications do not survive for consideration and are accordingly disposed of.”
Advocates Representing The Parties
For the Petitioner: Sri K. Ravishankar, Advocate
For the Respondents: Sri Sandesh Shetty T., Advocate
Case Title: Deenanath v. Chandrahas & Others
Neutral Citation: 2025: KHC:41760
Case Number: WP No. 796 of 2022
Bench: Justice S. Vishwajith Shetty
