Page No.# 1/7 GAHC010008362024 2025:GAU-AS:8619 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/50/2024 CHARANDEEP SINGH S/O- LATE SURENDER SINGH, R/O- MORAN TOWN, WARD NO. 3, P.O. AND P.S. MORANHAT, DIST. CHARAIDEO, ASSAM, PIN- 785670. VERSUS NAVADEEP SINGH AND 4 ORS S/O- LATE SURENDER SINGH, R/O- MORAN TOWN, WARD NO. 3, P.O. AND P.S. MORANHAT, DIST. CHARAIDEO, ASSAM, PIN- 785670. 2:RAMANDEEP SINGH S/O- LATE SURENDER SINGH R/O- MORAN TOWN WARD NO. 3 P.O. AND P.S. MORANHAT DIST. CHARAIDEO ASSAM PIN- 785670. 3:SMTI. MANJIT KAUR W/O- LATE SURENDER SINGH R/O- MORAN TOWN WARD NO. 3 P.O. AND P.S. MORANHAT DIST. CHARAIDEO ASSAM PIN- 785670. 4:SMTI. KAMALDEEP KAUR W/O- HARBINDAR SINGH D/O- LATE SURENDER SINGH R/O- NIZ KADAMONI GAON THERMAL P.O. GABHARUPATHAR Page No.# 2/7 DIST. DIBRUGARH ASSAM PIN- 786001. 5:ASSAM FINANCIAL CORPORATION HEAD OFFICE- VITTIYA BHAWAN M.S. ROAD PALTANBAZAR GHY-781008 AND GUWAHATI OFFICE ASSAM FINANCIAL CORPORATION MALOWALI NEAR BSNL EXCHANGE P.O. P.S. AND DIST. JORHAT ASSAM PIN- 78500 Advocate for the Petitioner : MR. A R SHOME, MR A J GHOSH,MR I P CHHETRI Advocate for the Respondent : MR. J K GOSWAMI (R-5), MS M DAS (R1-R4),MR. U J SAIKIA (R1-R4) BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 05.08.2025 Heard Mr. A.R. Shome, learned counsel for the petitioner. Also heard Mr. U.J. Saikia, learned counsel for the respondents. 2. In this petition, under Article 227 of the Constitution of India, the petitioner has challenged the order dated 13.12.2023, passed by the learned Civil Judge (Senior Division), Charaideo, in petition No. 254/23, arising out of Title Suit No. 6/2021. 3. It is to be noted here that vide impugned order dated 13.12.2023, the Civil Judge (Senior Division), Charaideo (‘Trial Court’, for short) had dismissed the petition filed by the petitioner. 4. Mr. Shome, learned counsel for the petitioner submits that the petitioner herein had filed one title suit, being Title Suit No. 6/2021, against the Page No.# 3/7 respondents for declaration of right, title, partition, separate possession and injunction, and after receiving summons in the said suit, the respondent Nos. 1, 2 and 3 and proforma respondent No. 4 filed their joint written statement and counter-claim. Mr. Shome also submits that against the said counter-claim, the petitioner filed his written statement, and thereafter, the learned Trial Court, based on the pleadings of the parties, had framed as many as six issues, and thereafter, fixed the case for evidence of the plaintiff’s witness. Mr. Shome further submits that in the written statement, especially in paragraph No. 24, the respondents had admitted execution of a Power of Attorney No. 692/2015, dated 28.09.2015, but they claimed that the same was revoked, vide Deed No. 202/2019, dated 19.12.2019, and in that respect also, one issue had been framed, being issue No. (v). Mr. Shome also submits that the respondents had filed their counter-claim for declaration of right, title and interest and also other reliefs, and thereafter, the plaintiff had filed a petition dated 19.09.2023, being petition No. 254/23, under Order 18 Rule 1 and 2 CPC, read with Section 151 CPC, praying for direction to lead evidence by the respondents/counter- claimants first, and against the said petition, the respondent Nos. 1 and 2 had filed their written objection and other respondents did not file any objection, but vide impugned order dated 13.12.2023, the learned Trial Court had rejected the petition, and being aggrieved, the petitioner has approached this Court by filing the present petition for setting aside the impugned order dated 13.12.2023. 4.1. Mr. Shome further submits that out of the six issues framed by the learned Trial Court, issue No. (iii) is to be proved by the plaintiff/petitioner herein and issues Nos. (iv) and (v) are to be proved by the defendants/respondents herein, and as such, the learned Trial Court on the basis of Order 18 Rule 1 and 2, read with Section 151 CPC, ought to have directed the defendants/respondents Page No.# 4/7 herein to adduce evidence first, and since the learned Trial Court had failed to consider the object of Order 18 Rule 1 and 2, the same requires interference of this Court, and therefore, it is contended to allow this petition. 4.2. In support of his submission, Mr. Shome has referred to the following decisions: (i) Jami Venkata Suryaprabha and Anr. Vs. Tarini Prasad Nayak and Ors., in Special Leave Petition (Civil) No. 29045/2024. (ii) Thokchom Nabakumar Singh Vs. Mayengbam Haridas Singh and Ors., reported AIR 1960 MANIPUR 11. 5. Per contra, Mr. Saikia, learned counsel for the respondents has vehemently opposed the petition. Mr. Saikia has pointed out that the burden to prove his case lies upon the plaintiff and as such, he has to adduce evidence first, and even if the respondents had filed counter-claim, yet they cannot be compelled to lead evidence first, and that the impugned order suffers from no infirmity requiring any interference of this Court, and therefore, it is contended to dismiss this petition. 6. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record, and also perused the decisions referred by Mr. Shome, learned counsel for the petitioner. 7. Order 18 Rule 1 CPC reads as under: “1. Right to begin.—The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contents that either in point of law or on Page No.# 5/7 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. While dealing with Order 18 Rule 1 CPC, Hon’ble Supreme Court in the case of Jami Venkata Suryaprabha (supra), has held as under: “18. Order XVIII Rule 1 indeed provides for plaintiff's right to begin the evidence but not the court's obligation to ask the plaintiffs to begin first. There is no impediment for the court to call upon either party to lead evidence first, depending upon the facts circumstances of the case and the nature of the issues framed. Neither party can insist that the other one should be asked to lead it first. It all depends upon what the Court deems proper in the circumstances.” 9. In the case of Thokchom Nabakumar Singh (supra), the Manipur High Court has held that: “The appellant had brought a suit on the strength of a sale deed. The written statement of defendant showed that he did not dispute the fact that there was such a document of sale in the name of the appellant. His contention was that though in form the document was a sale deed, in actual fact it was intended by the parties to the document only to be a mortgage.” 9.1. It has also been held that: “On the above pleadings, the Munsiff ought to have framed the issue in the case with the burden thrown on the first defendant and he ought to have called upon defendant to lead evidence in support of his contention that the deed was only a mortgage.” 10. In the instant case, the respondents herein as defendants filed one counter-claim for right, title and interest and also for some other reliefs, and in Page No.# 6/7 paragraph No. 24 of the written statement, the respondents herein had admitted the execution of Power of Attorney No. 692/2015, dated 28.09.2015, but they claimed that the said Power of Attorney was revoked, vide Deed No. 202/2019, dated 19.12.2019. 11. It also appears that upon the pleadings of the parties in respect of the said Power of Attorney, one issue was framed i.e. issue No. (v), which reads as under: “(v) Whether the special power of attorney executed on 28.09.2019 was validly revoked by a registered deed dated 19.12.2019?” 12. No doubt, in respect of revocation of the registered power of attorney, the burden of proof lies upon the respondents herein, but the learned Trial Court, vide impugned order dated 13.12.2023, referred to Order 18 Rule 3 CPC, which deals with the burden of proving facts by defendant where there are several issues, which clearly indicates 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 case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning", and that the said Order 18 Rule 3 is applicable in the instant case, and thereafter, dismissed the petition directing the plaintiff/petitioner herein to adduce evidence first. 13. 13. While the aforementioned finding, so recorded by the learned Trial Court, Page No.# 7/7 is examined in the light of the ratio laid down by Hon’ble Supreme Court in the case of Jami Venkata Suryaprabha (supra), this Court is of the view that the same suffers from no infirmity or illegality since in the aforementioned case, Hon’ble Supreme Court has held that though there is no impediment for the Court to call upon either party to lead evidence first, depending upon the facts circumstances of the case and the nature of the issues framed, yet neither party can insist that the other one should be asked to lead it first and that it all depends upon what the Court deems proper in the circumstances. 14. Thus, it appears that wide discretion is left with the learned Trial Court to decide who has to lead evidence first and upon exercising the said jurisdiction, and also considering the relevant provisions of law, the learned Trial Court had directed the plaintiff/petitioner herein to adduce evidence first. It is well settled that neither party can insist that the other one should be asked to lead it first. 15. In that view of the matter, I find no merit in this petition and the accordingly, the same stands dismissed. 16. The learned Trial Court is directed to proceed with the suit in accordance with law. 17. Interim order passed earlier, if any, stands vacated. 18. The parties have to bear their own costs. 19. Registry shall send back the TCR forthwith. JUDGE Comparing Assistant