{"id":6605,"date":"2017-10-26T20:53:19","date_gmt":"2017-10-26T15:23:19","guid":{"rendered":"http:\/\/mynation.net\/docs\/?p=6605"},"modified":"2017-10-26T20:53:19","modified_gmt":"2017-10-26T15:23:19","slug":"781-2003","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/781-2003\/","title":{"rendered":"Whether court can direct defendant to adduce his evidence before plaintiff?"},"content":{"rendered":"

IN THE HIGH COURT OF JUDICATURE AT BOMBAY<\/strong>
\nBENCH AT AURANGABAD<\/p>\n

WRIT PETITION NO. 781 OF 2003<\/p>\n

Zainabee w\/o Mohammad Bashir,
\nVs.
\nShivkumar<\/p>\n

CORAM: \u00a0RAVINDRA V. GHUGE, J.
\nDATE :\u00ad 15th September, 2017<\/p>\n

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.<\/p>\n

2 The Petitioners\/ original Plaintiffs are aggrieved by the order dated \u00a0 09.09.2002 \u00a0 by \u00a0 which \u00a0 the \u00a0 application \u00a0 Exhibit\u00ad47 \u00a0 filed \u00a0 by \u00a0 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 Exhibit\u00ad49 filed under Order 18 Rule 1 of the Code of \u00a0 Civil \u00a0Procedure \u00a0 praying \u00a0that \u00a0the \u00a0 Defendants \u00a0should \u00a0commence \u00a0 the recording of oral evidence, has also been rejected.<\/p>\n

3 The \u00a0 learned \u00a0 Advocate \u00a0 for \u00a0 the \u00a0 Petitioners \u00a0 has \u00a0 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:\u00ad “(D) To \u00a0 stay \u00a0 further \u00a0 proceedings \u00a0 in \u00a0 Regular \u00a0 Civil \u00a0 Suit No.516 of 2000 pending before the Civil Judge, Junior Division, Jalna, until disposal of this Writ Petition.”<\/p>\n

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

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.<\/p>\n

6 Insofar \u00a0 as \u00a0 Tamizbee \u00a0 is \u00a0 concerned, \u00a0 the \u00a0 contention \u00a0 of \u00a0 the Petitioners is that she was a lady belonging to the Muslim religion. She was a \u00a0pardanashin \u00a0and 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 \u00a0 31 \u00a0 Acres \u00a0 and \u00a0 32 \u00a0 Gunthas \u00a0 at \u00a0 Jalna. \u00a0 The \u00a0 said \u00a0 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.<\/p>\n

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.<\/p>\n

8 It is in the above set of facts that the application Exhibit\u00ad47 was \u00a0filed \u00a0by the \u00a0Petitioners \u00a0praying \u00a0for \u00a0deletion \u00a0of \u00a0all \u00a013 \u00a0issues and framing new issues, which were proposed by the said application.<\/p>\n

9 Upon considering the submissions of the learned Advocates for the respective sides on Exhibit\u00ad47, I find that a skeletal application was filed by the \u00a0Petitioners, which is completely vague in nature. Solitary aspect of Tamizbee being an illiterate and \u00a0pardanashin \u00a0lady, 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.<\/p>\n

10 It \u00a0 also \u00a0 appears \u00a0 from \u00a0 the \u00a0 proposed \u00a0 issues \u00a0 that \u00a0 the \u00a0 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 \u00a0 pleadings in the suit, when in fact the principles of pleadings are “first plead and then prove” and “one who pleads shall prove”.<\/p>\n

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 Exhibit\u00ad47 requires no consideration, could be termed as being perverse or erroneous merely because a different view could be possible.<\/p>\n

12 Insofar as the sale deed dated 29.12.1972 is concerned and which \u00a0 has \u00a0 acquired \u00a0 the \u00a0 registration \u00a0 No.2047, \u00a0 it \u00a0 is \u00a0 contended \u00a0 by \u00a0 the Plaintiffs that Tamizbee has died on 30.09.1972. The copy of the Death Certificate \u00a0issued by the \u00a0Health 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, \u00a0 is \u00a0 shown \u00a0 to \u00a0 the \u00a0 Court, \u00a0 which \u00a0 indicates \u00a0 the \u00a0 date \u00a0 of \u00a0 death \u00a0 of Tamizbee as being 30.09.1972. This document was issued on 12.02.2016.<\/p>\n

13 Shri \u00a0 Sangit, \u00a0 learned \u00a0 Advocate \u00a0 for \u00a0 the \u00a0 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 \u00a0 a \u00a0 stand \u00a0 before \u00a0 the \u00a0 Trial \u00a0 Court \u00a0 when \u00a0 the \u00a0 recording \u00a0 of \u00a0 evidence commences.<\/p>\n

14 In \u00a0 this \u00a0 backdrop, \u00a0 the \u00a0 onus \u00a0 and \u00a0 burden \u00a0 of \u00a0 proving \u00a0 the registered \u00a0 sale \u00a0 deed \u00a0 dated \u00a0 29.12.1972 \u00a0 would \u00a0 lie \u00a0 on \u00a0 the \u00a0 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.<\/p>\n

15 By the filing of Exhibit\u00ad49, the Plaintiffs have invoked Order 18 Rule 1 of the Code of Civil Procedure. The contention is that the Defendants \u00a0 should \u00a0 step \u00a0 into \u00a0 the \u00a0 witness \u00a0 box \u00a0 first \u00a0 and \u00a0 should \u00a0 lead evidence. Order 18 Rule 1 speaks about the right to begin which would mean \u00a0 that \u00a0 a \u00a0 particular \u00a0 party \u00a0 might \u00a0 express \u00a0 its \u00a0 desire \u00a0 to \u00a0 begin \u00a0 the recording of its evidence as a matter of right.<\/p>\n

16 Order 18 Rule 1 reads as under:\u00ad<\/p>\n

“Order XVIII : Hearing of the suit and examination of witnesses.
\n“1. Right to begin :\u00ad The plaintiff has the right to
\nbegin unless the defendant admits the facts alleged by
\nthe plaintiff and contends that either in point of law
\nor on some additional facts allegedly by the defendant
\nthe plaintiff is not entitled to any part of the relief
\nwhich he seeks, in which case the defendant has the
\nright to begin.”<\/p>\n

17 By the application Exhibit\u00ad49, the Plaintiffs are not seeking the \u00a0 exercise \u00a0 of \u00a0 the \u00a0 right \u00a0 under \u00a0 Order \u00a0 18 \u00a0 Rule \u00a0 1. \u00a0 The \u00a0 Plaintiffs \u00a0 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.<\/p>\n

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 \u00a0 is \u00a0 a \u00a0 void \u00a0 document. \u00a0 Insofar \u00a0 as \u00a0 the \u00a0 registered \u00a0 sale \u00a0 deed \u00a0 dated 29.12.1972 is concerned, naturally the Defendants will have to prove that the \u00a0 said \u00a0 sale \u00a0 deed \u00a0 has \u00a0 legal \u00a0 sanctity \u00a0 which \u00a0 would \u00a0 occur \u00a0 only \u00a0 in \u00a0 the backdrop \u00a0 of \u00a0 the \u00a0 Plaintiffs \u00a0 proving \u00a0 that \u00a0 their \u00a0 maternal \u00a0 grandmother Tamizbee has died on 30.09.1972.<\/p>\n

19 None \u00a0 of \u00a0 the \u00a0 citations \u00a0 placed \u00a0 on \u00a0 record \u00a0 by \u00a0 the \u00a0 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.<\/p>\n

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.<\/p>\n

21 This Court, in \u00a0Dattatray 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 \u00a0Metafield 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 \u00a0 such \u00a0 a \u00a0 formal \u00a0 request \u00a0 to \u00a0 the \u00a0 Court. \u00a0 If \u00a0 the \u00a0 Court \u00a0 permits \u00a0 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.<\/p>\n

23 In my view, the effect of Section 111 of the Indian Evidence Act \u00a0will \u00a0surely \u00a0be \u00a0considered \u00a0by the \u00a0Trial \u00a0Court keeping in \u00a0view \u00a0the contentions that Tamizbee was a pardanashin lady and has contended that a \u00a0 fraud \u00a0 was \u00a0 played \u00a0 and \u00a0 her \u00a0 illiteracy \u00a0 has \u00a0 been \u00a0 exploited \u00a0 by \u00a0 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 \u00a0 on \u00a0 the \u00a0 Plaintiffs \u00a0 and \u00a0 insofar \u00a0 as \u00a0 the \u00a0 Sale \u00a0 Deed \u00a0 of \u00a0 29.12.1972 \u00a0 is concerned, the same has been cast upon the Defendants.<\/p>\n

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.<\/p>\n

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.<\/p>\n","protected":false},"excerpt":{"rendered":"

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 781 OF 2003 Zainabee w\/o Mohammad Bashir, Vs. Shivkumar CORAM: \u00a0RAVINDRA…<\/p>\n","protected":false},"author":1091,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_customify_content_layout":"","_customify_sidebar":"","_customify_page_header_display":"","_customify_disable_header":"","_customify_disable_header_top":"","_customify_disable_header_main":"","_customify_disable_header_bottom":"","_customify_disable_page_title":"","_customify_disable_content_vertical_padding":"","_customify_disable_footer_top":"","_customify_disable_footer_main":"","_customify_disable_footer_bottom":"","_customify_breadcrumb_display":"","_customify_header_transparent_display":"","footnotes":""},"categories":[65],"tags":[50122,50121,14151,50124,26785,49939,49938,15911,1747,50125,50127,50126,144,50131,113,13331,55314,3814,55315],"class_list":["post-6605","post","type-post","status-publish","format-standard","hentry","category-judgments","tag-489a-help","tag-498a-free-advice","tag-498a-judgments","tag-498a-legal-support","tag-498a-support","tag-clause","tag-code-of-criminal-procedure-crpc","tag-cpc","tag-dv-act","tag-dv-act-judgments","tag-dv-act-legal-support","tag-dv-act-support","tag-ipc","tag-l","tag-petition","tag-petitioner","tag-ravindra-v-ghuge","tag-section","tag-zainabee"],"_links":{"self":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/6605","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/users\/1091"}],"replies":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/comments?post=6605"}],"version-history":[{"count":0,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/6605\/revisions"}],"wp:attachment":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/media?parent=6605"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/categories?post=6605"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/tags?post=6605"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}