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Whether court can direct defendant to adduce his evidence before plaintiff?



Zainabee w/o Mohammad Bashir,

DATE :­ 15th September, 2017

1 Considering the fact that a short issue has been raised for consideration of this Court in this petition, by consent of the parties, the Civil Application No.7105/2014 praying for listing the Writ Petition for final hearing out of turn is disposed of and the petition is taken up for final hearing.

2 The Petitioners/ original Plaintiffs are aggrieved by the order dated   09.09.2002   by   which   the   application   Exhibit­47   filed   by   the Petitioners seeking deletion of all 13 issues and framing of new issues, has been rejected. The Petitioners are similarly aggrieved by the same order by which their application Exhibit­49 filed under Order 18 Rule 1 of the Code of   Civil  Procedure   praying  that  the   Defendants  should  commence   the recording of oral evidence, has also been rejected.

3 The   learned   Advocate   for   the   Petitioners   has   strenuously criticized the impugned order. It is also pointed out that this petition was filed on 29.11.2002 and by the order dated 08.02.2005, interim relief was granted in terms of prayer clause (D), which reads as under:­ “(D) To   stay   further   proceedings   in   Regular   Civil   Suit No.516 of 2000 pending before the Civil Judge, Junior Division, Jalna, until disposal of this Writ Petition.”

4 Pursuant to the said relief, RCS No.516/2000 (Old Special Civil Suit No.11/1995) filed by these Petitioners has been stayed.

5 It is further contended that a registered mortgaged deed was executed in favour of the Defendants Late Surajlal and Late Bankatlal by Tamizbee. She passed away on 30.09.1972. The Defendants, by playing a fraud, got the Sale Deed registered on 29.12.1972 bearing No.2047.

6 Insofar   as   Tamizbee   is   concerned,   the   contention   of   the Petitioners is that she was a lady belonging to the Muslim religion. She was a  pardanashin  and was leading a secluded life. Late Bankatlal and Late Surajlal were owning the adjacent agricultural land and could be said to be the owners of the neighbouring land. Tamizbee reposed faith in these two persons and executed the mortgage deed. She was, however, not explained the contents of the said deed bearing No.1082 in respect of Survey No.288 admeasuring 16 Acres and 8 Gunthas and Survey No.290 admeasuring   31   Acres   and   32   Gunthas   at   Jalna.   The   said   registered mortgage deed dated 25.04.1966 is the result of the fraud played by the said two persons and by exerting undue influence. Being an illiterate and a villager, Tamizbee did not understand what has actually been transacted by the said mortgage deed.

7 After Tamizbee passed away, Zainabee and her five sons were taken on record as legal heirs. Subsequently, Zainabee has also passed away and now the suit is being contested by her five sons.

8 It is in the above set of facts that the application Exhibit­47 was  filed  by the  Petitioners  praying  for  deletion  of  all  13  issues and framing new issues, which were proposed by the said application.

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9 Upon considering the submissions of the learned Advocates for the respective sides on Exhibit­47, I find that a skeletal application was filed by the  Petitioners, which is completely vague in nature. Solitary aspect of Tamizbee being an illiterate and  pardanashin  lady, has been canvassed over and over again without any pleading and averment as to why all 13 issues deserve to be discarded and the issues proposed by the Petitioners need to be cast.

10 It   also   appears   from   the   proposed   issues   that   the   entire burden on various aspects of the case has been tried to be placed on the Defendants. In short, the Plaintiffs do not want the burden on themselves to establish any aspect of the   pleadings in the suit, when in fact the principles of pleadings are “first plead and then prove” and “one who pleads shall prove”.

11 The Trial Court has noted that insofar as the mortgage deed dated 25.04.1966 is concerned, as the Petitioners have claimed that the said document is void, the onus probandi would lie on the shoulders of the Plaintiffs. It also cannot be ignored that once the Plaintiffs discharge their burden, the onus would shift on the Defendants. On account of the same, I do not find that the conclusion of the Trial Court that Exhibit­47 requires no consideration, could be termed as being perverse or erroneous merely because a different view could be possible.

12 Insofar as the sale deed dated 29.12.1972 is concerned and which   has   acquired   the   registration   No.2047,   it   is   contended   by   the Plaintiffs that Tamizbee has died on 30.09.1972. The copy of the Death Certificate  issued by the  Health Department, Municipal Council, Jalna under Section 12/17 of the Registration of Births and Deaths Act, 1969 and Rule 8/13 of the Maharashtra Registration of Births and Deaths Rules, 2000,   is   shown   to   the   Court,   which   indicates   the   date   of   death   of Tamizbee as being 30.09.1972. This document was issued on 12.02.2016.

13 Shri   Sangit,   learned   Advocate   for   the   Respondents/ Defendants, submits that he cannot make any statement as to whether, the death of Tamizbee is admitted by the Defendants, though they will have to take   a   stand   before   the   Trial   Court   when   the   recording   of   evidence commences.

14 In   this   backdrop,   the   onus   and   burden   of   proving   the registered   sale   deed   dated   29.12.1972   would   lie   on   the   Defendants considering the scope and effect of Section 111 of the Indian Evidence Act, 1872 and the view taken by the Honourable Supreme Court in the matter of Krishna Mohan Kul @ Nani Charan Kul and another vs. Pratima Maity and others, (2004) 9 SCC 468 : AIR 2003 SC 4351 and the Gauhati High Court in Mustt.Jubeda Khatun vs. Sulaiman Khan, AIR 1986 Gauhati 71.

15 By the filing of Exhibit­49, the Plaintiffs have invoked Order 18 Rule 1 of the Code of Civil Procedure. The contention is that the Defendants   should   step   into   the   witness   box   first   and   should   lead evidence. Order 18 Rule 1 speaks about the right to begin which would mean   that   a   particular   party   might   express   its   desire   to   begin   the recording of its evidence as a matter of right.

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16 Order 18 Rule 1 reads as under:­

“Order XVIII : Hearing of the suit and examination of witnesses.
“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 allegedly 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.”

17 By the application Exhibit­49, the Plaintiffs are not seeking the   exercise   of   the   right   under   Order   18   Rule   1.   The   Plaintiffs   are attempting to project that Order 18 Rule 1 can be invoked to push the Defendants into the witness box first as if the Plaintiffs have the right to demand that the Defendants should first lead evidence. I do not find that Order 18 Rule 1 indicates in any way that such relief can be sought by the Plaintiffs, who do not exercise their right to begin and desire that the Defendants should begin recording their oral evidence first.

18 The Plaintiffs contend that as the sale deed dated 29.12.1972 has been registered after the demise of Tamizbee, the onus and burden of proving the truthfulness and legality of the sale deed would lie on the Defendants. The Trial Court has observed in the impugned order that it would be the primary duty of the Plaintiffs to establish that the mortgage deed   is   a   void   document.   Insofar   as   the   registered   sale   deed   dated 29.12.1972 is concerned, naturally the Defendants will have to prove that the   said   sale   deed   has   legal   sanctity   which   would   occur   only   in   the backdrop   of   the   Plaintiffs   proving   that   their   maternal   grandmother Tamizbee has died on 30.09.1972.

19 None   of   the   citations   placed   on   record   by   the   Petitioners would indicate that a the pardanashin lady, while invoking Section 111 of the Indian Evidence Act, could seek an order under Order 18 Rule 1 for refraining from stepping into the witness box and per contra, seeking a direction to the Defendants to commence their evidence.

20 In Bhagirath Shankar Somani vs. Rameshchandra Daulal Soni, 2007 (5) Mh.L.J. 508 : 2007(4) ALL MR 514, this Court concluded that if the Defendant decides to lead evidence first and is so permitted by the Court, the Plaintiff can always lead evidence in rebuttal. The Trial Court does not have the power to issue a direction to the Defendant compelling him to lead his evidence before the Plaintiff adduces his evidence under Order 18 Rule 1. Only when the Defendant claims a right to begin under Rule 1 and the Plaintiff disputes existence of such right, the Court will have to decide the question whether, the Defendant has acquired a right to begin.

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21 This Court, in  Dattatray Namdeo Patil vs. Ram Namdeo Patil and others, 2010(3) Mh.L.J. 801, dealt with a similar issue and concluded in paragraphs 3 and 4 that Rules 1 and 2 of Order 18 of the Code of Civil Procedure would entitle the Defendant, who admits the fact, to begin the recording of his evidence first. It is an enabling provision. If the Defendant applies and makes a request or claims such a right, the Court may pass an order permitting the Defendant to step into the witness box first. 22 In  Metafield Coil Private Limited vs. Nikivik Tube Industries Private Limited, 2012 (1) Mh.L.J. 289, while considering such an issue under Order 18 Rule 1, this Court concluded that a consistent view taken by the courts is that a direction against the Defendant to lead evidence before the Plaintiff leads his evidence, cannot be issued under Order 18 Rule 1. The scheme of law appears to be that of a normal rule and it would be a privilege of the Plaintiff to lead his evidence first. However, it enables the Defendant to exercise the right in the contingency mentioned in the rule. After the Plaintiff exercises his option to lead evidence first, it is for the Defendant to decide whether, he would like to lead evidence and make   such   a   formal   request   to   the   Court.   If   the   Court   permits   the Defendant to lead evidence first, the Plaintiff can always lead evidence in rebuttal. The Court does not have the power to issue a direction to the Defendant so as to compel him to step into the witness box first and lead evidence.

23 In my view, the effect of Section 111 of the Indian Evidence Act  will  surely  be  considered  by the  Trial  Court keeping in  view  the contentions that Tamizbee was a pardanashin lady and has contended that a   fraud   was   played   and   her   illiteracy   has   been   exploited   by   the Defendants. All the male members of the Petitioners’ family are now the Plaintiffs before the Trial Court. In some of the issues, the burden has been cast   on   the   Plaintiffs   and   insofar   as   the   Sale   Deed   of   29.12.1972   is concerned, the same has been cast upon the Defendants.

24 In that view of the matter, I do not find that the impugned order could be termed as being perverse or erroneous or likely to cause grave injustice to the Petitioners. This Writ Petition, being devoid of merit is, therefore, dismissed. Rule is discharged.

25 However, I deem it appropriate to order the Trial Court to decide the Regular Civil Suit No.516/2000 as expeditiously as possible and preferably within a period of NINE MONTHS from today, keeping in view that the suit has been instituted sometime in January, 1995. The litigating sides shall render their cooperation to the Trial Court for such expeditious disposal.

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