It should be borne in mind that the right to begin is not same as adducing of evidence in support of a party’s case.



( Before : Panigrahi, C.J; Mohapatra, J )



H.K. MAHATAB — Respondent

Civil Revision No. 19 of 1954

Decided on : 09-02-1954

Civil Procedure Code, 1908 (CPC) – Order 18 Rule 1, Order 18 Rule 2, Section 115
Evidence Act, 1872 – Section 101, Section 102, Section 103

Counsel for Appearing Parties

A. Das, for the Appellant; B.M. Patnaik, for the Respondent


Panigrahi, C.J.—This is an application u/s 115, Civil P. C., against an order of the Subordinate Judge, Cut-tack, calling upon the defendants in a suit for defamation to begin their case. The plaintiff opposite party filed the suit for defamation claiming Rs. 1 lakh as damages, for alleged libel on his reputation caused by certain writings in the “Matrubhumi” of which the defendants are the Editor and the Publisher.

The defendants’ case is that these publications do not constitute libel; they also plead, in the alternative, fair comment, privilege and justification by truth.

These being the allegations and the counter-allegations, the trial Court framed issue No. 4 as follows:

“Is the plaintiff entitled to recover damages from the defendants; if so how much and from whom?”

Sometime later, on an application made by the plaintiff, the learned Subordinate Judge framed some additional issues. Issues No. 4 and 5 as thus framed read as follows:

‘4. Whether the articles referred to in the plaint and the extract quoted therein were published” maliciously?

5. Whether the articles referred to in the plaint and the extracts quoted therein constitute libel on the plaintiff?”

The other three issues relate to the plea of justification by truth, fair comment, and qualified privilege.

2. On these issues the question arises as to who has the right to begin. It was contended for the plaintiff-opposite party that in view of the admissions made by the defendants in the written statement regarding the position held by the plaintiff and the publication of the impugned articles, the onus had shifted to the defendants to prove the truth of the articles and the privileged occasion in which they were published. The substantial contention raised on behalf of the plaintiff is that the words used are per se defamatory and the question whether they amount to libel or not is one for the Court to decide and not for the plaintiff to prove by adducing evidence. The learned Subordinate Judge has accepted this contention of the plaintiff and called upon the defendants to begin in the first instance,

3. The same contentions have been repeated before us and a number of citations have been made from the text books on the subject of ‘Torts’. It appears to us, however, that the statements made in the text-books regarding what the plaintiff has to prove in such suits are not quite relevant to the point that falls to be decided by us.

The procedure to be adopted at a trial is laid down in Order 18, Rule 1, Civil P. C., which says that 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 other 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. Rule 2 of Order 18 says that the party having the right to begin shall state his case and produce evidence in support of the issues which he is bound to prove.

The issues framed by the learned trial Judge called upon the plaintiff to prove firstly that the impugned publications constituted a libel on the plaintiff and secondly that he is entitled to recover damages and, if so, assess the quantum of damages from the party concerned. On a mere perusal of the issues, it would appear that the plaintiff should have been called upon to state his case and adduce evidence in support of his claim that his reputation has been damaged by the alleged publication of articles which constitute a libel on his character.

The lower Court appears to have made a confusion between the right to begin and the proof required in support of the plaintiff’s case. It may be that the defendant has admitted the publication of the articles but it cannot be stated that he admitted that the articles constituted a libel on the character of the plaintiff. That the plaintiff has a reputation which could be damaged by the alleged libellous writing or that it has been so damaged as to justify the claim is a matter peculiarly within the knowledge of the plaintiff and has to be established by him.

Sections 101, 102 and 103, Evidence Act, lay down the rules to be followed in determining on whom the onus lies of proving a particular fact. The allegations essential for the support of a party’s case may be negative in form but affirmative in essence. The plaintiff who complains of an attack upon his character or reputation has, in the first place, however cleverly he may frame his allegations in the plaint, to make out that he had a reputation which had been damaged by the writing complained against.

The true rule in such cases is laid down in Ameer Ali’s commentary on this bunch of sections to the following effect:

“When the issue raised by the Court is in substance whether the plaintiff’s or defendant’s story is true, it is possible that neither of the stories may be true. The question, then, arises which of the two alternative issues is the really material one. So the really material one is the first of the issues — is the plaintiff’s story true?”

If this rule is applied as the proper test to the facts of the present case the Court has before it two alternative stories: firstly, that the plaintiff “had a reputation which has been damaged giving him a right to recover damages; but as against this the defendant claims privilege, fair comment, and justification by truth, Neither of these versions may ultimately be found to be true. In such a situation, it would clearly be the duty of the plaintiff to prove, in the first instance, that his story is true.

4. Another point which the Court below has missed is that the defence is substantially an argumentative traverse of the truth of the plaintiff’s story and cannot be taken to be an admission of any of the plaint allegations, constituting defamation of the plaintiff’s character. The only fact that may be regarded as having been admitted is that the defendants are respectively the editor and publisher of the journal in which the impugned articles appeared. But it cannot be taken to have been admitted in the pleading that they constitute a libel on the plaintiff’s character. In these circumstances the onus lies on the plaintiff affirmatively to establish his case, as set out in the first two issues; otherwise he must fail and in that event, it is open to the defendant to say:

“I need not prove the truth of my defence as the plaintiff has not proved his.”

5. It should therefore be borne in mind that the right to begin is not the same as the adducing of evidence in support of a party’s case. There is a distinction between the two. It is open to the plaintiff to say that although he has the right to begin he may rest content with relying upon the averments made in the written statement and may say that he does not propose to adduce further evidence, but the plaintiff should make this statement before the defendant is called upon to adduce evidence. Unfortunately, the Court below has confused the issue and has called upon the defendant to open his case even before the plaintiff went into the box or testified to the truth of his story. We are clearly of opinion that the order of the learned Subordinate Judge is erroneous and must be set aside.

6. The second point urged before us is about the maintainability of this revision. It has been contended that however erroneous the view taken by the Court below may be, it does not affect his jurisdiction nor does it constitute a material irregularity in procedure. We are unable to accede to this contention as we are of opinion that there has been a clear breach of the provisions of Rules 1 and 2 of Order 18, Civil P. C., as well as of the rules of evidence.

7. If we do not interfere at this stage it may well be that the point will again be agitated at a later stage necessitating an order for re-trial. Such a course would involve the parties in considerable expense and would also entail delay which can be avoided by our interference at this stage. We would therefore overrule the second contention on this ground also.

8. In the result, this revision succeeds and the order of the learned Subordinate Judge is set aside. The petitioner will have his costs which we assess at Rs. 50/- (rupees fifty only).

Mohapatra, J.

9. I agree.

(1954) AIR(Orissa) 191 : (1954) 20 CutLT 682 : (1954) ILR(Cuttack) 165


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