Bombay High Court
Deepak S/O. Vasudeobhai Rathod ... vs Prabhubhai Jadhavji Rathod And ... on 10 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.6784 OF 2015
PETITIONERS: 1. Deepak S/o Wasudeobhai Rathod,
Aged about 53 years, occ-Busines,
Org. Deft. Nos. 1e
& 2
2. Kantilalbhai W/o Vasudeobhai
Rathod, Aged about 74 years, Occ-
Business,
Both R/o 19, Dharampeth
Extension, Shankar Nagar Square,
Nagpur.
-VERSUS-
RESPONDENTS: 1. Prabhubhai Jadhavji Rathod, Aged
about 72 years, Occ-Business, R/o
(Org. Plff.)
Kusum Smruti, Plot No.19,
Dharampeth Extension, Shankar
nagar Square, Nagpur.
Deft. Nos.(1a) to 2. Veena Vasudeobhai Rathod, Aged
1(d) about 80 years, Occ-Household, R/o
19, Dharampeth Extension, Shankar
Nagar Square, Nagpur.
3. Sheela Ramesh Chauhan, Aged about
60 years, Occ-Household, R/o 9/10,
New Arvind Nagar, North
Sundervarsh, Udaypur.
4. Sadhana Hemant Parmar, Aged about
58 years, Occ-Household, R/o Street
No.3, Behind Shiv Mandir, Fafadih,
Raipur.
5. Anju Rajesh Rathod, Aged about 44
years, Occ-Household, R/o P.O. Box
No.38, Near Shambhu mandir,
Toongri, Post-Chaibasa, District-
Shingbhum, Jharkhand-833 201.
Org. Deft. No.3. 6. Vasantaben Keshavlal Maru, Aged
about 81 years, Occ-Household, R/o
Bombay Music House, Main Road,
Jhar Suguda, District-Sambhalpur
(Orisa).
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Org. Deft. No.4. 7. Madhulika Mahesh Chawda, Aged
about 62 years, Occ-Household, R/o
Kusum Smruti, Plot No.19
Dharampeth Extension, Shankar
Nagar Square, Nagpur.
Org. Deft. No.5. 8. Meena Jagannath Chauhan, Aged
about 60 years, Occ-Household, R/o
101, Ganga Apartments, Vijay Baug,
Murbad Road, Kalyan-421 384.
Org. Deft. No.7. 9. Shantilalbhai Dayarambhai Rathod,
Aged about 73 years, Occ-Business,
Org. Deft. No.8. 10. Harishbhai Dayarambhai Rathod,
Aged about 68 years, Occ-Business,
9 & 10 R/o 19, Dharampeth
Extension, Shankar Nagar Square,
ig Nagpur.
Shri Rohit Joshi, Advocate for the petitioners.
Shri N. S. Deshpande, Advocate for the respondent No.1.
----------------------------------------------------------------------------------------------------
CORAM: A.S. CHANDURKAR, J.
DATED: 10
th JUNE, 2016.
ORAL JUDGMENT :
1. In terms of order dated 16-12-2015, the learned
Counsel for the parties have been heard at length by issuing Rule
and making the same returnable forthwith.
2. The petitioners who are the defendant Nos.1(e) and 2
in Regular Civil Suit No.1207/2005 are aggrieved by the order
dated 20-10-2015 passed by the trial Court below Exhibit-61
thereby directing them to first begin their evidence for proving the
execution of Wills dated 10-4-1996 and 3-6-2000.
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3. Shri Rohit Joshi, learned Counsel for the petitioner
submitted that the trial Court was not justified in allowing the
application filed by the original plaintiff under provisions of Order
XVIII Rule 1 of the Code of Civil Procedure, 1908 (for short, the
Code). According to him, the defendant cannot be directed to first
lead evidence unless the situation is governed by the provisions of
Order XVIII Rule 1 of the Code. In support of his submissions, the
learned Counsel placed reliance on the judgment of learned Single
Judge in Bhagirath Shankar Somani and another v. Rameshchandra
Daulal Soni and another 2007 (5) M.L.J. 508. He submits that the
defendants had never claimed any right to begin as per aforesaid
provisions.
4. Shri N. S. Deshpande, learned Counsel for the
respondent No.1 supported the impugned order. According to
him, as the defendants were the propounders of the aforesaid
wills, the trial Court was justified in directing the defendants to
first lead evidence. He, therefore, submitted that there was no
reason to interfere in exercise of writ jurisdiction.
5. Having perused the impugned order and having heard
the respective counsel, the impugned order is liable to be set aside
as the same is contrary to the settled position of law and against
the spirit of the provisions of Order XVIII Rule 1 of the Code. In
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Bhagirath Shankar Somani (supra), the learned Single Judge in
para 16 of the judgment has observed thus:
"16. Thus, the consistent view taken by this
Court is that a direction against the defendant
to lead evidence before the plaintiff leads his
evidence cannot be issued under sub-rule (1)
of Order XVIII of the said Code. The scheme of
Rule 1 appears to be that as a normal rule it is
the 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. The
plaintiff in a given case can make a statement
ig before the trial Court stating that as the case
is covered by exception in Rule 1 of Order
XVIII of the said Code, he is reserving his right
to lead evidence in rebuttal after the
defendant leads his evidence.
As held by this Court, the Court
has no power to issue a direction to the
defendant compelling him to lead his evidence
before the plaintiff adduces his evidence.
Only when the defendant claims right to begin
under Rule 1 and the plaintiff disputes
existence of such a right, the Court will have
to decide the question whether the defendant
has acquired a right to begin."
6. From the aforesaid, it is clear that it is only the
defendant who claims a right to begin under provisions of Order
XVIII Rule 1 of the Code that the occasion to direct the defendants
to lead evidence first would arise. In the present case, the
defendants did not exercise any such right and it was the plaintiff
who had moved the application below Exhibit-61 in that regard.
7. Considering the aforesaid legal position, the impugned
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order being contrary to the same is liable to be set aside.
Accordingly, the following order is passed:
(1) The order dated 20-10-2015 passed below Exhibit-61
is quashed and set aside. The application stands rejected.
(2) The writ petition is allowed in aforesaid terms with no
order as to costs.
JUDGE
//MULEY//
