Motibhai Prabhubhai vs Umedchand Kasalchand

Shah, C.J.—The question involved in this revision application is one of the practice and procedure relating to the interpretation of O. 18, R. 3, C.P. Code, and the matter has been referred to the division Bench by Chhatpar J. since, in his opinion, Sanghavi Harjivandas v. Sanghavi Amratlal, 2 Sau LR 156 (A) has been wrongly decided. The applicant Motibhai Prabhubhai, who is the second mortgagee, filed, a suit to enforce his mortgage against the opponent Umedchand Kasalchand, the mortgagor, as defendant 1, and the first mortgage as defendant 2.

The opponent admitted the execution of the Mortgage, but set up defences of undue influence and fraud etc. On the pleadings certain issues were framed by the lower court, and issue No. 1 was later amended and the onus of proving the issue was cast on defendant 1. So also the onus of proving issues Nos. 2 and 3 was on defendant 1.

Thereafter the case was fixed for hearing the evidence of the plaintiff on 10-4-54, but as the case could not be reached the hearing was adjourned to 7-6-54, on which date the Judge was on leave and the case was then adjourned to 9-7-1954. The hearing was again adjourned to 18-8-54, this time as the request of the parties.

In the meantime on 22-7-54, the plaintiff filed an application stating that he reserved the right to lead evidence in rebuttal on those issues the burden of which lay on defendant 1. This application was taken up for consideration on 18-8-54 and was opposed by defendant 1 on the ground that it should have been made before the case was fixed for hearing.

The Civil Judge, Senior Division, accepted the contention relying upon the decision of Divatia C.J. in 2 Sau LR 156 (A) and held that the plaintiff ought to have applied at the earlier adjournment of the case, and he therefore dismissed the application on the ground that it was made at a late stage. In the abovesaid case the burden of proving some of the issues was on the plaintiff and of proving others was on the defendant.

After the issues were framed, the case was fixed for evidence but was adjourned from time to time and was eventually fixed on 21-10-48. On that day the plaintiff did not apply to exercise his option under O. 18, R. 3, but somehow the case could not be taken up for hearing and was adjourned from time to time thereafter on account of extraneous reasons and the plaintiff then applied for reserving his evidence on 17-1-49. The learned Chief Justice observed:

Although it may not be quite true that the plaintiff took more than a year, it is clear that when on 1-10-1948, the case was fixed for evidence, the plaintiff ought to have applied Immediately thereafter for exercising his option under O. 18, R. 8. In any case he did not apply before the date fixed for taking evidence viz., the 21st October.

It is true that on account of extraneous reasons the case could not be taken up for evidence on that day and that it was adjourned from time to time, But that is not the reason why the plaintiff should not apply in time before the case is fixed for evidence, and in my opinion therefore the lower court was right in inferring that the plaintiff must be taken to have waived his right.

It is contended on behalf of the plaintiff that in any case, the evidence is not yet begun and that therefore in the interest of justice, his application should be allowed. But that could, in my opinion, amount to encouraging the negligence as well as tardiness on the plaintiff when the law clearly contemplates that the application should be made in any case before the case is fixed for evidence. It may be that the case be heard on that day. But that does not relieve the party from applying in time before that date.

With respect, we cannot agree with this view of the learned Chief Justice. Order 18, C.P.C. prescribes the procedure of hearing of suits and examination of witnesses; and R. 1 says that 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. This rule is not material for the present purpose.

Rule 2 deals with the statement and production of evidence and lays down that on the day fixed for hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin is to state his case and produce his evidence in support of the issues which he is bound to prove, and the other party is then to state his case and to produce his evidence. The rest of the rule is not relevant and need not be stated.

Rule 3 says that where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter cast, the party beginning may produce evidence on those issues after the other party has produced all his evidence.

The rest of the rule is not relevant to the present discussion. The procedure to be adopted on the day of hearing of the suit is thus prescribed by Rr. 2 and 3 and for a proper understanding thereof the two rules require to be read together.

In substance the procedure is that on the date of the hearing the party having the right to begin states his case and produces his evidence in support of the issues the burden of which lies on him, and that where there are several issues, the burden of proving some of which lies on one party and of proving the others on the oilier party, the party beginning is given a right to exercise his option either to produce his evidence on issues, the burden of proving which lies on the opposition party, along with the evidence on the issues, the burden of proving which lies on himself or to reserve that evidence by way of answer to the evidence produced by the other party, that is to say, he may give such evidence in rebuttal after the opposite party has produced all his evidence.

The expression used in R. 3 is "the party beginning" and this expression is to be read in the context of the words "the party having the right to begin" used in R. 2. Therefore reading the two rules together in their proper context, it is clear that the option is to be exercised at the time the party (having the right to begin) begins and states his case and not at any earlier moment.

There is nothing in rule 3 to suggest that the option is to be exercised beforehand; nor again is there anything to show that a regular application has to be made to the Court for the purpose. The scheme is that the party beginning states his case and at that time he exercises the option and intimates to the Court that he will either produce evidence on all the issues including those the burden of proving which lies on the opposite party or that he will reserve his evidence on these latter issues.

We are, therefore, unable to accept the view of Divatia C.J. that the party beginning is required to apply in time before the case is fixed for evidence and that the option cannot be exercised on the date fixed for hearing or on which the case is actually taken up for hearing. Rule 3 does not require anything of the kind.

In Nahey Raja v. Kedar Nath 1953 34 AIR 40 (B), which is cited before us, it was observed:

The law does not prescribe a stage at which a party should apprise the Court of its exercising the option under O. 18, R. 3. But it is only reasonable that this should be done, if possible, before it begins; and in any case before the other party begins its evidence, so that it might clearly note that the first party has not really finished.

In our opinion the true position is that the option is to be exercised at the time the party having a right to begin states his case, and he in then required to make up his mind to exercise the option whether he would reserve his evidence in rebuttal or otherwise. We do not agree that the option can be exercised at any later stage, that is to say, before the other party begins his evidence.

With all respect to the learned Chief Justice, the decision in ''Sanghavi Harjivandas v. Sanghavi Amratlal Mavji'', 2 Sau LR 156 (A) is not correct and it must be treated as overruled. The order of the lower Court which is based on that decision cannot therefore be sustained. Accordingly, we allow this revision application, set aside the order of the lower Court and direct that the plaintiff be permitted to reserve his evidence in rebuttal on those issues the burden of proving which lies on defendant 1. The opponent to pay the applicant''s costs and to bear his own.

Baxi, J.

I agree.