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.
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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 781 OF 2003
Zainabee w/o Mohammad Bashir, V Shivkumar
CORAM: RAVINDRA V. GHUGE, J.
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.
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.
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.
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.
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.
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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 781 OF 2003
Zainabee w/o Mohammad Bashir, V Shivkumar
CORAM: RAVINDRA V. GHUGE, J.
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.
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.
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.
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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