High Court

Legal Reasoning

(1) wp-871-2025.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO.871 OF 2025Shri. Laxman Kisan Chavan,Age: 53 years, Occu: Agri,R/o. Khokar,Tal: Shrirampur, Dist: Ahmednagar..Petitioner (Orig. Plaintiff)Versus1.Shri. Nandkumar Kisanrao Chvan,Age: 45 years, Occ: Agri,2.Sau. Meera Nandkumar Chavan,Age: 40 years, Occ: Agri,3.Sau. Neelam Nandkumar Chavan,Age: 22 years, Occ: Agri,4.Nilesh Nandkumar Chavan,Age: 20 years, Occ: Agri,5.Sau. Mangal Machindra Kale,Age: 55 years, Occ: Agri,6.Sau Hirabai Dattatraya Kale,Age: 45 years, Occ: Agri,7.Sau. Chhaya Rajendra Kale,Age: 32 years, Occ: Agri,8.Smt. Bebi Karbhari Chavan,Age: 50 years, Occ: Agri,9.Shri. Aniket Karbhari Chavan,Age: 30 years, Occ: Agri,10.Shri. Abhijeet Karbhari Chavan,Age: 28 years, Occ: Agri,11.Sau. Manisha Aniket Chavan,Age: 27 years, Occ: Agri,12.Sau. Deepali Abhijeet Chavan,Age: 27 years, Occ: Agri,All R/o. Khokar, (2) wp-871-2025.odtTal: Shrirampur, Dist: Ahmednagar..Respondents (Orig. Defendants) …Mr. R. A. Tambe, Advocate for Petitioner.Mr. M. K. Bhosale, Advocate for Respondents.… CORAM : S. G. CHAPALGAONKAR, J.Reserved On : 16th JULY, 2025.Pronounce On : 31st JULY, 2025. JUDGMENT:- 1.Rule. Rule made returnable forthwith. With consent of theparties, matter is taken up for final hearing at admission stage.2.The petitioner/original plaintiff impugns order dated16.12.2024 passed by Civil Judge Senior Division, Shrirampurbelow Exhibit-197 in Regular Civil Suit No.108/2013, by whichprayer of petitioner/plaintiff to direct defendants to concludeargument before plaintiff has been rejected.3.The plaintiff instituted Regular Civil Suit No.108/2013 beforeCivil Judge Senior Division, Shrirampur claiming relief ofdeclaration, perpetual injunction and fixation of boundaries. Thedefendants appeared in suit and refuted contents of plaint.Eventually, issues were framed. The plaintiff recorded hisevidence and filed Evidence Close Pursis dated 07.07.2024 belowExhibit-185. Thereafter, respondents/defendants recorded theirevidence and filed Evidence Close Pursis dated 07.08.2024 belowExhibit-189. (3) wp-871-2025.odt4.At this stage, petitioner filed application below Exhibit-197contending that petitioner has recorded his evidence first.Thereafter, evidence of respondents is recorded. The matter is atthe stage of arguments. Therefore, as per provisions of sub-clauses(2) and (3) of Rule 2 of Order XVIII of Code of Civil Procedure,defendants who have closed their evidence last in order arerequired to conclude arguments. Thereafter, plaintiff would haveright to put his final submissions on entire case. Accordingly,directions were sought against defendants to conclude argumentsbefore plaintiff. The learned Trial Court rejected petitioner’scontentions observing that there is no mandate under law to directdefendants to conclude arguments first. The defendants cannot becompelled to begin with their arguments reserving rights ofplaintiff to argue on whole case. According to Trial Court,application tendered by plaintiff is an attempt to protractlitigation.5.Mr. Tambe, learned Advocate appearing for petitioner invitesattention of this Court to Rule 2 of Order XVIII of Code of CivilProcedure and contends that plaintiff, who has right to begin oncestates his case and produce his evidence in support of issues, thenother party/defendant is under obligation to state his case andproduce his evidence and address Court generally on whole case.In last, plaintiff/party beginning may reply generally on whole (4) wp-871-2025.odtcase. According to Mr. Tambe, defendants have recorded theirevidence after plaintiff. Therefore, defendants are under obligationto argue matter first. The plaintiff can reply thereafter generallyon whole case. He would, therefore, urge that application tenderedbefore Trial Court at Exhibit-197 was in tune with aforesaidprovisions, which ought to have been allowed. In support of hiscontentions he relies upon judgment of Single Judge of this Courtin case of Gajanan Dhondu Dalvi Vs. Trishul ConstructionCompany and another1 and judgment in case of SharanappaAlias Sharanabasappa Tipama Vs. Veerappa R.Maranbassari2.6.Per contra, Mr. Bhosale, learned Advocate appearing forrespondents submits that provisions of Rule 2 of Order XVIII ofCode of Civil Procedure are not mandatory. According to him, sub-clauses (2) and (3) of Rule 2 of Order XVIII are enabling provisionsand no party has right to seek direction from Court against otherparty to argue matter first, in point of time, converse to chronologyof right to begin. In support of his contentions he relies uponjudgments of Supreme Court of India in cases of Jami VenkataSuryaprabha and Another Vs. Tarini Prasad Nayak andOthers3 and Shivaji Laxman Palaskar and Ors. Vs. Sau.Kamal Raosaheb Shipalkar and Ors.4.11995 (1) Mh.L.J. 695.21968 Mh.L.J. 629.32024 SCC OnLine SC 3862.42019 (1) ABR 159. (5) wp-871-2025.odt7.Having considered submissions advanced, question thatarises for consideration before this Court is whether provisions ofsub-clauses (2) and (3) of Rule 2 of Order XVIII of Code of CivilProcedure are mandatory in nature and whether any party caninsist upon other party to begin first or argue matter first. Therelevant part of Rule 2 of Order XVIII of Code of Civil Procedurereads thus:“2. Statement and production of evidence-(1) On the day fixed for hearing of the suit or on any otherday to which the hearing is adjourned, the party having theright to begin shall state his case and produce his evidence insupport of the issues which he is bound to prove.(2) The other party shall then state his case and produce hisevidence (if any) and may then address the Court generallyon the whole case.(3) The party beginning may then reply generally on thewhole case.”8.Plain reading of aforesaid provision would show thatgenerally plaintiff has right to begin. However, in exceptional casewhere defendant has admitted contents of plaint and puts hisdefence on the point of law or other additional facts, defendant hasright to begin. Rule 2 of Order XVIII deals with stage of hearingand stipulates that party having right to begin shall produce hisevidence in support of issues, then other party shall state his case (6) wp-871-2025.odtand produce his evidence and may then address the Courtgenerally on the whole case. Sub-clause (3) of Rule 2 of OrderXVIII prescribes that party beginning may reply generally onwhole case. Plain reading of sub-clauses (2) and (3) of Rule 2 ofOrder XVIII shows that provisions are for convenience and does notput any obligation upon any party so far as chronology ofaddressing Court on continuation of evidence. Generally it is truethat defendant, who laid evidence later in point of time, is expectedto argue matter in continuation of evidence and plaintiff/partybeginning may reply generally on whole case. Therefore, looking tothe chronology under sub-clauses (2) and (3) of Rule 2 of OrderXVIII, contention of petitioner is acceptable that defendants mayhave argued their case in continuation of their evidence leavingright in favour of petitioner/plaintiff to reply generally on wholecase. Mr. Tambe has rightly relied upon judgment of Single Judgeof this Court in case of Gajanan Dhondu Dalvi (supra), whereinthis Court observed in paragraph no.6 as under:“6. In the present case, I am concerned with Rule 2, whichlays down the general rule that the one, which has right tobegin, must "address the Court generally on the whole case".It further provides that the party beginning may then "replygenerally on the whole case". A careful reading of Rule 2clearly shows that the said Rule proceeds on the principlethat the party, which has involved in the evidence first mustaddress the Court last. Thus, on a plain reading of theprovisions of the said Rule, it is the defendant, who has toopen the argument first.” (7) wp-871-2025.odt9.Further in last paragraph Single Judge of this Courtobserved as under:“9. As already indicated, Rule 2 of Order 18 clearlystipulates that the party giving the evidence first has theright to address the Court last and the defendant having ledhis evidence last, he is required to address the Court first. Inthe result, the Civil Revision Application succeeds. Theorder dated January 13,1995 passed by the City Civil Courtis set aside. The parties are directed to appear before theCity Civil Court on February 16,1995. Needless to say thatthe defendant shall open his argument first and thereafterthe plaintiff shall address the Court in accordance withRule 2 of Order 18. Civil Revision Application is disposed ofaccordingly with no order as to costs.”10.In view of aforesaid legal position, second issue that arisesfor consideration is whether plaintiff can insist upon defendants toargue matter first and whether Court can issue such directions.The aforesaid issue is no more res-integra. The Supreme Court ofIndia in case of Jami Venkata Suryaprabha and Another(supra) observed in paragraph no.18 as under:“18. Order XVIII Rule 1 indeed provides for plaintiff's rightto begin the evidence but not the court's obligation to ask theplaintiffs to begin first. There is no impediment for the courtto call upon either party to lead evidence first, dependingupon the facts and circumstances of the case and the natureof the issues framed. Neither party can insist that the otherone should be asked to lead it first. It all depends upon whatthe Court deems proper in the circumstances. Where it findsthat defendant's plea strikes of the root of the case, therewould be no hitch in asking him/her to prove such plea firstwhich can lead to disposal of the case. There can be nowatertight compartmentalisation in matters of justice andall rules of procedure are designed and directed to achieveand secure ends of justice.” (8) wp-871-2025.odt11.In light of aforesaid observations of Supreme Court of India,none of the party can insist upon other party to address argumentfirst. Even wording of sub-clauses (2) and (3) of Rule 2 of OrderXVIII of the Code of Civil Procedure uses the term ‘may’.Therefore, it is difficult to hold that petitioner could have insisteddefendants to argue first and secure such directions from TrialCourt. However, in facts of each case Court would have discretionto pass orders in tune of law discussed in foregoing paragraphs.12.Perusal of reasons in impugned order do not depict that TrialCourt applied mind to the factual matrix in tune with legal positionthat subsists. In that view of the matter, this Court deems it fit torelegate matter to Trial Court by setting aside impugned order forreconsideration of application in light of law holding the field andpass appropriate orders in exercise of discretion in judiciousmanner.13.In result, Writ Petition is partly allowed and disposed of inabove terms.14.Rule is made absolute in above terms.(S. G. CHAPALGAONKAR)JUDGEDevendra/July-2025