Ori HC | Admission of only some facts would not qualify defendants the right to begin first under Or. 18 R. 1 CPC

Orissa High Court: Dr A.K. Rath, J. allowed the present petition and quashed an order passed by the Additional Civil Judge (Senior Division) directing the plaintiffs to begin first due to the defendants only admitting some of the facts alleged.

In the present case, the possession of the suit property is in question. The suit property was initially granted in a lease, wherein the lessee failed to pay the land revenue. Thereafter, the property was put to auction. The winner in the auction sale sold the property to one Prasanna Kumari Dei. The property was thereafter gifted to Golak Bihari Kanungo, which he let out to plaintiff’s 1 and 2 and the father of other plaintiffs on the monthly rent.  The plaintiffs constructed shop rooms and were running a business. An application for settlement of land was filed before the Tahasildar, Puri by one Sui Bai, stating that she had purchased the land in the Execution Case No. 206 of 1965. The Tahasildar cancelled the lease granted in favour of Sui Bai and had sent the case records to the Collector for the resumption of suit plot. The defendant nos. 1 and 2 had filled a written statement, stating their mother being the owner of the suit property on strength of a mortgage deed. The right, title, interest and possession of their mother over the property was declared by the present High Court through an Execution Case. Thereafter, the mother had executed two gift deeds in favour of the defendants. The plaintiffs had filed an application under Order 18 Rule 1 of Code of Civil Procedure, 1983 (‘CPC’) for a direction to the defendants to begin first, which was allowed by the learned trial court.

The Senior Advocate representing the petitioners, Ganeswar Rath assisted by B.K. Nayak, Advocate submitted that the defendants did not admit the facts alleged in the plaint and by a laconic order, the trial court had allowed the application.

The Counsel representing the opposite parties, Manas Ranjan Panda, contended that the plaint unerringly states that the defendants had admitted that the suit property is the khasmahal land and that Golak Bihari Kanungo was in possession of the land as well. It was also mentioned in the plaint that the defendants admitted the fact of possession being with the mother by Execution Case No. 206 of 1965 and thus, the defendants should begin first.

The High Court, perused Order 18 Rule 1 CPC and relied on the judgment, Mirza Niamat Baig v. Sk. Abdul Sayeed, 2008 (I) OLR 566 which held 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 stated by the law. The Court had also held that “where a defendant admits only some of the facts alleged by the plaintiff, there the plaintiff should begin.” The present High Court perused the documents placed on record and held that the defendants had only admitted some of the facts in the plaint. Thus, placing reliance on the above decision, the plaintiffs shall begin their case first.[Mohanlal Agarwal v. Raghunath Nayak, 2019 SCC OnLine Ori 228, decided on 10-07-2019]

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