Shri Harish Kumar Bhateja v. Shri Bhagwan Dass & Ors.

1. This is an appeal filed under Rule 4 Chapter II of the Delhi High Court (Original Side) Rules, 1967 seeking to set aside the impugned order 2015:DHC:19 dated 23.08.2014 passed by the Joint Registrar dismissing the application of defendants No.1 to 10. The appellant with respondents No. 2 to 10 had filed their application i.e. I.A. No. 7251/2014 under Order 18 Rule 4 CPC for directions that defendants No. 11 to 14 tender their evidence first by way of affidavit before defendants No. 1 to 10 are asked to lead evidence.

2. The issues were framed in this case on 02.02.2011. The plaintiff has completed his evidence as is apparent from order dated 27.01.2014 of the Joint Registrar. On the said date also the Joint Registrar directed the defendants to lead their evidence on the next date i.e. 24.04.2014. It was at this stage that defendants No. 1 to 10/the appellant with respondents No. 2 to 10 had filed the present application i.e. I.A. No. 7251/2014.

3. Learned counsel appearing for defendants No. 1 to 10 vehemently submits that the suit is a collusive suit between the plaintiff and defendants No. 11 to 14. He submits that the said defendants No. 11 to 14 are supporting the case of the plaintiff and hence, they have to lead evidence before defendants No. 1 to 10 are directed to lead evidence.

4. Learned counsel appearing for defendants No. 11 and 12 submits that her clients are partly supporting the case of the plaintiff but opposes the appeal.

5. Learned counsel for the plaintiff states that they are not concerned with this controversy and the evidence of the plaintiff is complete.

6. A perusal of the impugned order shows that the Joint Registrar has noted the provisions of Order 18 Rule 4 CPC and held that the evidence has to be led by the defendants in chronological order. The Joint Registrar further held that there is no material on record to show that defendants NO. 11 to 14 are colluding with the plaintiff and that the evidence has to be led by them in first instance.

7. Order 18 (1) CPC states as follows:- “(1) 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.”

8. Order 18 CPC does not reproduce the order in which the defendants inter se are to lead evidence. The settled legal position however is that the defendants who are supporting the case of the plaintiff would normally lead evidence before the other defendants who are contesting the case of the plaintiff.

9. In the above context, reference may be had to the judgment of the Gujarat High Court in the case of Shah Hiralal Himatlal & Ors. vs. M.G.Pathak & Ors., AIR 1964 GUJ 26; MANU/GJ/0059/01964 wherein the court held as follows:- “4. So far as the defendants go, the question which of tree defendants should begin has not been dealt with in Order 18, C. P. Code. But on general principle, if any of the defendants supports the plaintiff in whole or in part, then he should address the Court and lead his evidence first before the other defendants who do not support wholly or in part the plaintiff's case. The order in which defendants lead evidence becomes important only when some of them support the case of the plaintiffs in whole or in part while the others do not. If all the defendants completely oppose the plaintiff's case, then the question of order of leading evidence amongst the defendants is immaterial. It is only when the defendants are divided into two groups, one group consisting of the defendants supporting the plaintiff's case in part and the other group consisting of defendants, who do not support the plaintiff's case in any part that the question of order of leading evidence becomes important. In such cases among defendants the order of leading evidence should be as follows: (1) Those defendants who fully support the case of the plaintiff. (2) Those defendants who partly support the case of the plaintiff. (3) Those defendants who do not support the casa of the plaintiff in any part.”

10. The above judgment has been followed by the Rajasthan High Court in the case of Shanker vs. Lali & Anr., 1982 WLN 663, MANU/RH/0147/1982.

11. Similarly the Bombay High Court in the case of Mandabai Ramkrishna Tumsare & Ors. vs. Ramlal Hiramanji Hiwarkar & Ors., 1986 MhLJ643; MANU/MH/0617/1985 held as follows:- “...Thus, as to the order in which evidence is to be taken, the rule is that the plaintiff and such of the defendants as support his case, wholly or in the part, must address the Court and call their evidence and then "the other party" i.e. the other defendants contesting the plaintiffs claim should address the Court and call their evidence....”

12. A perusal of the plaint here shows that the plaintiff seeks declaration declaring the plaintiff to be a joint owner of the property bearing No. H-10, Kirti Nagar, New Delhi and seeks partition of the same declaring his share to be 1/18th. The controversy centres around the said property bearing No. H-10 Kirti Nagar, New Delhi which was in the name of Late Sh.Kesho Dass. The plaintiff is the grandson of Sh.Kesho Dass and the son of defendant No.13. Defendants No.1, 3, 6, 8, 11 and 13 are the sons of Late Sh.Kesho Dass.

13. Defendant No. 11 in his written statement states that he had filed a civil suit titled Baldev Raj vs. Sh.Kesho Dass which was decided on 18.11.1974 and the suit property in question was declared as an HUF property of the family members of Late Sh.Kesho Dass. Defendant No. 11 confirms that the legal heirs have a share in the suit property.

14. To the same effect there are written statements of defendants No. 12 and 13 and 14.

15. In the light of the above facts, it is clear that defendants No. 11 to 14 are supporting the case of the plaintiff or substantially supporting the case of the plaintiff.