State of Jammu and Kashmir vs Haji Ghulam Nabi

This revision petition was dismissed by me for want of prosecution on 26-8-1968. Later on it was restored by my order dated 1-11-1968.

I have heard the learned Counsel for the parties. The impugned order has been passed by the trial Judge Mr. Saif-ud-Din, (A. D. M.) Sub

Judge, Srinagar on 24-2-1968. It appears that after the issues were framed the Defendant's learned Counsel put in an application before the trial

Court that some legal issues be disposed of and tried first. Mr. Choudhry, the learned Counsel for the Plaintiff stated before the Court below that

the issues could not be disposed of till some evidence came on record. The Court stated that it had gone through the issues and it agreed with Mr.

Choudhry that unless some evidence was brought on record, the issues could not be decided. It rejected the petition of the Defendant and ordered

the Defendant to produce evidence on 16-3-1968.

The Defendant feels aggrieved by this order of the trial Court. Mr. Amarchand, the Additional Advocate General addressed elaborate

arguments in this revision petition. He has taken me through the issues. On 23-5-1967 four issues were struck in this case, which are as under:

Is the suit of the Plaintiffs for rendition of accounts not maintainable? If so how? O. P. D.

Is the suit of the Plaintiffs liable to be returned for presentation to the lowest Court having jurisdiction? O.P.D.

Is the notice u/s 80 CPC in accordance with law? O.P.D.

The 4th issue is with respect to relief. Then additional issues were struck on 21-11-1967 which are as under:

Is the suit of the Plaintiffs not maintainable in view of the arbitration clause in the agreement? O.P.D.

Has the suit of the Plaintiffs been wrongly valued? if so, what should be the correct valuation? O.P.D.

Was the rate of the wood work settled at 18.75% above the scheduled rate? O.P.D.

In case issue No. 6 is not proved, are the Plaintiffs estopped from claiming more than Rs. 18.75% above the scheduled rates for the wood

work ? O.P.D.

Does the agreement forming the basis of the suit comply with the requirements of the Constitution of the State of J. and K. If not, is the suit

maintainable? O.P.D.

To what relief are the Plaintiffs entitled? O.P.P.

Mr. Amarchand's argument is that the onus of these issues was upon the Defendant. The Defendant does not want to produce any evidence and

further these issues could be disposed of only on arguments, therefore the direction of the trial Court that the Defendant should produce evidence is

meaningless.

I have perused the grounds of revision. In paragraph 2 of the revision petition, it is stated that the issues of law even though requiring evidence

being led, should have been tried and determined first since the case or at any rate apart thereof could be disposed of on such issues only."" This

paragraph suggests that even according to the Defendant some issued which he calls issues of law required evidence. Therefore reading the order

of the trial judge and the revision petition to this Court together, I do not find there is anything wrong with the order of the trial Court. On this point

alone this revision could be rejected. But Mr. Amar Chand has taken a different line of argument before me. He has argued that the Defendant

does not want to produce any evidence. The issues are simply legal issues which can be decided on the; pleadings of the paties.

Mr. Choudhry's further argument in this Court is that even if the Defendant does not want to produce any evidence upon the issues which he calls

preliminary issues, he at least should be given a right to produce evidence with respect to the same. The point of law that arises therefore is when

the burden of certain issues is on one party and that party does not give any evidence then has the other party a right to lead evidence on such

issues. Mr. Amarchand says that the other party in such a case has the right of rebuttal and when no evidence has been given by the party upon

whom the initial onus lies, the question of rebuttal does not arise. He has in this connection invited my attention to the provisions of Order 18 of the

Code of Civil Procedure. According to him under Rule 2 of that order the party having the right to begin shall state his case and produce his

evidence in support of the issues which he is bound to prove. Sub-rule 2 states that the other party shall then state his case and produce his

evidence (if any) and may then address the Court generally on the whole case. Mr. Amarchand emphasises the word ""then"" in this sub-rule.

According to him the rule gives right to the other party to give evidence only when the first party produces some evidence. If the first party does

not produce any evidence, the other party has no right to produce evidence.

I do not agree with Mr. Amarchand. When issues are struck the burden of proof of some issues is placed upon one party and the party begins to

produce evidence about the issues the burden of proof of which is upon him. If he does not like to produce any evidence, the other party cannot

be deprived of his right to produce evidence. All that this Rule 2 of Order 18 lays down is the order in which the parties have a right to state their

case and produce their evidence. But the right to give evidence is guaranteed to both sides on the striking of any issue, no matter whether the party

upon whom the burden of proof is placed does not produce any evidence. One party upon whom the burden of proof is placed may under genuine

belief or mistakenly rest content with the pleadings, the other party may throw better light by his evidence on the pleadings and on the issues struck.

He cannot be denied this right. That would be against the principles of natural justice also.

Therefore, even if the Defendant in this case does not want to produce any evidence, the Plaintiff can produce his evidence with respect to the so-

called preliminary issues. This revision petition is therefore dismissed but when the case goes to the trial Court, it will dispose of the preliminary

issues before taking up the issues of fact. It will however give the Defendant an opportunity to produce any evidence with respect to the

preliminary issues. After the Defendant gives his evidence if any, the Plaintiff also shall be permitted to produce evidence with respect to these

issues. After both the parties or either of them have produced evidence with respect to the preliminary issues the trial Court will dispose of the

preliminary issues first. The trial Court will further see that there is no unnecessary delay caused in the disposal of the suit by either party