Zainabbee Mohammad Bashi vs Shivkumar Bankatlal Jaiswal
2017 Latest Caselaw 7201 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                          WRIT PETITION NO. 781 OF 2003

1     Zainabee w/o Mohammad Bashir,
      Aged 62 years, Occupation : Household.

2     Shaikh Iqbal.
3     Shaikh Gaffar.
4     Shaikh Sattar.
5     Shaikh Rashid.
6     Shaikh Shafi.

Nos.2 to 6 sons of Mohammad Bashir,
Aged 41, 37, 34, 31 and 27 years respectively.
All Labourers and residents of 
Sanjaynagar, Zopadpatti, Old Jalna,
District Jalna.
                                           ...PETITIONERS
                                           (Original Plaintiffs)
       -VERSUS-

1     Shivkumar
2     Prabhulal
3     Madhusudan
4     Jagdish.

Nos.1 to 4, sons of Bankatlal Jaiswal
Aged 47, 42, 37 and 32 respectively.

5     Pramilabai w/o Shivnarayan Jaiswal,
      Age : 50 years.
      (Deleted as per order dated 04.02.2005).

6     Sharad s/o Champatlal Jaiswal,
      Age : 37 years.

      All Agriculturalists and Businessman,
      Resident of Nehruroad, Jalna.

7     Prakash Laxman Prasad Jaiswal,




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        Aged : 37 years, 
        Occupation : Agriculturist and Businessman,
        R/o Kadrabad, Jalna.

8       Shankarlal s/o Hiralal Jaiwal,
        Aged : 37 years, 
        Occupation : Agriculturist and Businessman,
        R/o Tirthpuri, Tq.Ambad, Dist.Jalna.
        (Abated as per order dated 17.06.2005).

9       Salikram s/o Ramlal Jaiswal,
        dead by his heirs and legal representatives:-
9/A     Sheshnarayan s/o Salikram Jaiswal,
        Aged : 57 years, Occupation : Businessman.
        R/o Bhajimandi, Kadrabad, Jalna.

9/B     Ramesh s/o Salikram Jaiswal,
        Aged : 52 years,
        Occupation : Businessman,
        R/o Bhajimandi, Kadrabad, Jalna.

9/C     Usha w/o Rajendra Prasad,
        Aged : 49 years,
        Occupation : Household,
        R/o Tanga Stand, Sadar Bazar,
        Jalna.
        (Deleted as per order dated 04.02.2005).

9/D Shakuntalabai w/o Prakash,
    Aged : 47 years,
    Occupation : Household,
    R/o Near Zenda, Kadrabad,
    Jalna.
                                              ...RESPONDENTS
                                              (Original Defendants)


                                       WITH
                          CIVIL APPLICATION NO.7105/2014 
                                  IN WP/781/2003 

                ZAINABBEE MOHAMMAD BASHIR AND OTHERS. 
                               VERSUS




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                  SHIVKUMAR BANKATLAL JAISWAL AND OTHERS.

                                      ...
           Advocate for the Petitioners : Shri Babasaheb V. Dhage.
    Advocate for Respondents 1 to 4,  6, 7, 9A, 9B and 9D : Shri L.V.Sangit.
                                      ...

                                          CORAM:  RAVINDRA V. GHUGE, J.

DATE :- 15th September, 2017

Oral Judgment :

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 Exhibit-47 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 Exhibit-49 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

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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

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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 Exhibit-47

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 Exhibit-47, 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

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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-47 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

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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 Exhibit-49, 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 Exhibit-49, 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

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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

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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

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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

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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.

kps                                                     (RAVINDRA V. GHUGE, J.)