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Can the court ask the defendant to make his final argument before the plaintiff?



Gajanan Dhondu Dalvi


Trishul Construction Company Ors.

Civil Revision Application No. 45 of 1995

9th February, 1995

Citation:  1996(3) ALL MR 167

JUDGMENT :- The plaintiff filed a Suit in the City Civil Court for an order directing the 1st defendant to carry his obligations under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 and specifically perform the agreement of sale dated May 31, 1985. The plaintiff joined the 2nd defendant since he claimed the sale of flat by the 1st defendant in March, 1988.

2. The Court framed issues as many as twelve in number. The 1st defendant, who is a builder, absented from the proceedings all the time. The plaintiff stepped in the witness box, gave evidence and closed his case. Thereafter, the constituted attorney of the 2nd defendant stepped in the witness box, gave evidence and closed his case.

3. At the end of the evidence, a point was raised about the right to begin. The plaintiff contended that in view of the provisions of Rule 2 of Order 18 of C.P.C., the defendant must address the Court first. The defendant, however, contended that it is the plaintiff, who should open the argument. The learned trial Judge, by his order dated January 13, 1995, gave a ruling that it was for the plaintiff to open the argument. Hence, this Revision Application by the plaintiff.

4. After hearing Mr. Gole for the plaintiff and Miss Misal for the 2nd defendant, I am of the opinion that the order of the learned Judge cannot be sustained in law. In the first place, it is difficult to appreciate the reasoning of the learned Judge and even the learned Advocate for the 2nd defendant fairly conceded that she is not supporting the reasoning of the learned Judge, though, according to her, it is necessary for the plaintiff to state his case in view of the provisions of Rule 2 of Order 18.

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5. Before adverting to the submission of Miss Misal, I may refer to Rules 1 and 2 of Order 18 and they read as follows :-

“R.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.”

“R.2 Statement and production of evidence.- (1) 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 shall state his case and produce his evidence in support of the issues which he is bound to prove.

(2) 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.

(3) The party beginning may then reply generally on the whole case.

(4) Notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage.”

6. In the present case, I am concerned with Rule 2, which lays down the general rule that the one, which has right to begin, must “address the Court generally on the whole case”. It further provides that the party beginning may then “reply generally on the whole case”. A careful reading of Rule 2 clearly shows that the said Rule proceeds on the principle that the party, which has involved in the evidence first must address the Court last. Thus, on a plain reading of the provisions of the said Rule, it is the defendant, who has to open the argument first.

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7. Miss Misal, however, strenuously contended that under Rule 2 the party having the right to begin is required to state his case and produce his evidence in support of the issues, which he is bound to prove. According to Miss Misal, it was obligatory for the plaintiff to state his case before he began his evidence and since admittedly the plaintiff has not stated his case before entering the witness box, it is imperative for the plaintiff to state his case first and then the defendant will state his case and thereafter the arguments will be made by the parties in accordance with Rule 2. Miss Misal urged that the provision relating to stating the plaintiff’s case is mandatory in nature and, therefore, the plaintiff should be directed to state his case first before making his argument. I am afraid that the submission is completely misconceived.

8. It is well-settled that the party having the right to open his case before producing his evidence is not entitled to do anything more than to state the broad outline of his case, to indicate in a general manner the evidence by which he proposes to prove the same and to read relevant portions of some important documents on which particular reliance is placed by him for the purpose of proving his case. The object of the provision for making an opening statement is to give the Court a general notion of what will be given in evidence. Thus the opening statement has to be made before the parties lead the evidence and it will be totally futile to direct the parties to make their opening statement after the entire evidence is completed. The scope of an opening statement is considered by Vimadalal, J. In Sharanappa v. Veerappa (70 Bom.L.R. 397), where the learned Judge has emphasized that the object is only to give broad outline of the case before the parties lead the evidence. A reference may also be made to the Halsbury Laws of England, 4th Edition, para 513, which reads as follows :-

” Immediately after the case is called on for trial, counsel or, if there is one, leading counsel for the plaintiff will open the case. The object of an opening is to give the court a general notion of what will be given in evidence. ……”

When the parties have led their evidence, it will be futile to direct them to state their case and, therefore, the submission of Miss Misal that there is still a need to make an opening statement must be rejected.

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9. As already indicated, Rule 2 of Order 18 clearly stipulates that the party giving the evidence first has the right to address the Court last and the defendant having led his evidence last, he is required to address the Court first. In the result, the Civil Revision Application succeeds. The order dated January 13, 1995 passed by the City Civil Court is set aside. The parties are directed to appear before the City Civil Court on February 16, 1995. Needless to say that the defendant shall open his argument first and thereafter the plaintiff shall address the Court in accordance with Rule 2 of Order 18. Civil Revision Application is disposed of accordingly with no order as to costs.

Order accordingly.

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