Himachal Pradesh High Court
Both Residents Of Village vs "15. It Would Be Pertinent To Deal ... on 14 November, 2022
Bench: Satyen Vaidya
1
REPORTABLE-NON-REPORTABLE
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 14th DAY OF NOVEMBER, 2022
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL MISCELLANEOUS PETITION MAIN (ORIGINAL)No. 370/2022
Between:
SHRI RAKESH BABU (SINCE DECEASED)
THROUGH HIS LEGAL REPRESENTATIVES:
(a) SMT. KAMLESH SOOD
( AGE:69 YEARS), WIFE
(b) SHRI RAHUL SOOD
(AGE:37 YEARS), SON OF LATE SHRI
RAKESH BABU.
BOTH RESIDENTS OF VILLAGE, P.O. AND
TEHSIL AMB, DISTRICT UNA, H.P.
...........PLAINTIFFS-PETITIONERS
(BY MR. NEERAJ GUPTA, SR. ADVOCATE, WITH
MR. AJEET JASWAL, ADVOCATE)
AND
SHRI RAJAN BABU SOOD, SON OF SHRI RAM
ROOP, RESIDENT OF VILLAGE, P.O. AND TEHSIL
AMB, DISTRICT UNA, H.P.
..........DEFENDANT-RESPONDENT
(Mr. ATUL JHINGAN, ADVOCATE)
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RESERVED ON : 04.11.2022
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DECIDED ON : 14.11.2022
This petition coming on for pronouncement of
judgment, this Court passed the following: -
ORDER
By way of instant petition, petitioners have assailed
order dated 09.05.2022, passed by learned Senior Civil Judge,
Court No. 1, Amb, District Una, H.P. in CMA No. 183-VI-2022,
filed in Civil Suit No. 72-1 of 2015, whereby, the prayer made by
the petitioners was partially rejected.
2. Brief facts necessary for adjudication of the petition
are that Civil Suit No. 72-1 of 2015 filed by the petitioners against
respondent is pending adjudication before the learned Senior
Civil Judge, Court No. 1, Amb, District Una, H.P. The suit was
initially filed by Mr. Rakesh Babu, Predecessor-in-interest of
petitioners, who died during its pendency. The original plaintiff
Sh. Rakesh Babu and respondent herein/defendant were sons
of late Sh. Ram Roop. The subject matter of the suit is the estate
left behind by Sh. Ram Roop. Whereas, Sh. Rakesh Babu
claimed to have inherited the estate of Sh. Ram Roop alongwith
defendant in equal shares and on such premise sought
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declaration as to joint ownership and possession with defendant
over the properties left behind by Sh. Ram Roop, defendant has
propounded a Will of Sh. Ram Roop in his favour and has
claimed inheritance to the properties left behind by Sh. Ram
Roop in accordance with Will. Plaintiffs have also assailed the Will
propounded by defendant to be the result of fraud, mis-
representation and undue influence.
3. Defendant has also filed a counter claim against the
plaintiffs seeking declaration that the land comprised in Khasra
No.1715 measuring 00-28-99 hects, situated in Village Amb
Khas, Tehsil Amb, District Una, H.P. has fallen to the share of
defendant/counter claimant under the Will dated 08.09.2010
executed by late Sh. Ram Roop and the revenue entries depicting
the ownership and possession of plaintiffs over the said land are
wrong, illegal and void. In addition, a money decree of Rs.
16,72,301/- has also been prayed for by the counter claimant.
4. Learned Trial Court framed following issued on
26.02.2019:-
"1. Whether the plaintiff is entitled for decree of declaration to
the effect that parties are joint owner in possession of the
suit land? OPP
2. Whether the plaintiff is entitled for decree of declaration to
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the effect that impugned Will dated 8.9.2010 is outcome of
fraud, misrepresentation and undue influence, as alleged?
OPP
3. Whether the Will is further required to be declared null and
void and it was executed without possession sound
disposition of mind since 2009 due to Parkinson diseases as
alleged? OPP
4. Whether the plaintiff has suppressed true and material
facts from this court, as alleged? OPD
5. Whether the plaintiff has no locus-standi to file the present
suit? OPD
6. Whether the suit is liable to be dismissed on the ground of
maintainability, as alleged? OPD
7. Whether the plaintiff is estopped by his act and conduct to
file the present suit, as alleged? OPD
8. Whether the impugned Will dated 8.9.2010 is duly executed in
due process of law, as alleged? OPD.
COUNTER- CLAIM
9. Whether the counter claimant/defendant is entitled decree of
declaration on the basis of registered Will dated 8.9.2010,
as alleged? OPD/CC
10. Whether the counter claimant/defendant is entitled for
money decree of Rs.16,72,301/- on the basis of Will dated
8.9.2010, as alleged? OPD/CC
11. Whether the counter claim is liable to be dismissed on the
ground of maintainability? OPP/Non-CC
12. Whether the counter claimant has no cause of action, as
alleged/OPP/Non-CC
13. Whether the counter claim is time barred, as alleged,
OPP/Non-CC
14. Whether the counter claimant has suppressed material
facts from the court, as alleged? OPP/Non-CC
15. Whether the counter claim is not properly valued as
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alleged? OPP/Non-CC
16. Whether the counter claimant has no locus standi, as
alleged? OPP/Non-CC
17. Whether this court has no jurisdiction, as alleged? OPP?
Non-CC
18 Relief."
5.
Subsequent to framing of issues, plaintiffs filed an
application before learned Trial Court under Order 14 Rules 1 and
5 read with Section 151 of Code of Civil Procedure with prayers
as under:-
"(a) Issues No. 3 and 10 as framed on 26.02.2019 may
be ordered to be struck off, being superfluous.
(b) Issue No. 2 as framed on 26.02.2019 may be
ordered to be recast/re-framed/amended as
under:-
Issue No.2: If Issue No.8 is proved in affirmative,
whether plaintiff is entitled for a decree of declaration
to the effect that the impugned Will dated 8.9.2010 is
an outcome of fraud, misrepresentation and undue
influence as alleged? OPP.
(c) Issue No.9 as framed on 26.2.2019 may also be
ordered to be recast/reframed/amended as under: -
Issue No.9: If findings under Issue No.8 are in
affirmative, whether the counter claimant-defendant is
entitled for a decree of declaration on the basis of Will
dated 8.9.2010, as alleged and is also entitled for a
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decree for a sum of Rs. 16,72,301/-, as alleged? OPD-
Counter Claimant.
(d) Additional issues may be ordered to be framed as
under:-
(i) Whether plaintiff is entitled for a decree for
permanent prohibitory injunction, as alleged?
OPP
r (ii)
Whether Mutations No. 901,1299 and1015
attested on the basis of alleged Will dated
8.9.2010 are liable to be declared null and
void, having no effect on the rights, title and
interest of the plaintiff, as alleged? OPP
( e) Any other order that this learned Court deems fit in
the facts and circumstances of the case may also be
passed in favour of plaintiff-applicant in the interest
of justice."
6. Vide impugned order, learned Trial Court partially
allowed the application of plaintiffs. Issue No. 3 framed in the suit
was ordered to be struck off being covered under issue No.2.
Additional issues as issues No. 3 and 3(a) were also ordered to
be framed as follows:-
"3) Whether Mutation No. 901, 1299 and 1015 attested on
the basis of alleged Will dated 8.9.2010 are liable to be
declared null and void, having no effect on the rights,
title and interest of the plaintiff, as alleged? OPP.
3-A) Whether the plaintiff is entitled for a decree for
permanent prohibitory injunction, as alleged? OPP"
Remaining prayers made by the plaintiffs were
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rejected.
7. Thus, the prayers to strike off issue No. 10 and to
reframe issue Nos. 2 and 9 were rejected. Learned Trial Court
rejected the aforesaid prayers by holding that such allowance will
violate the provisions of Order 18 Rule 1 of the Code of Civil
Procedure, according to which, it is the plaintiff who has to begin
the evidence. It has further been held that since the allegations
regarding Will of late Sh. Ram Roop being result of fraud,
misrepresentation and undue influence were not admitted by
defendant, the reframing of issues No. 2 and 9 would amount to
calling upon the defendant to lead evidence in first instance.
Learned Trial Court also inferred that the plaintiffs had made a
prayer that issue No. 8 be directed to be proved by defendant
prior to proving of issue No. 2 by plaintiffs.
8. I have heard learned counsel for the parties and gone
through the record.
9. At the very outset, this Court is constrained to observe
that learned Trial Court has misapplied the provisions of Order
18 Rule 1 of Code of Civil Procedure, while considering the
questions posed before it. The procedure prescribed in Rule 1 of
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Order 18 of CPC has no direct relation with the framing of issues
in a suit, the onus to prove such issues and burden to prove the
same. Issues arise when a material proposition of fact or law is
affirmed by the one party and denied by the other. The material
propositions are those propositions of law or fact which plaintiff
must allege in order to show a right to sue or a defendant must
allege in order to constitute his defence. Each material
proposition affirmed by one party and denied by the other shall
form the subject of a distinct issue. Issues can be of fact and of
law or a mixed issue of fact and law.
10. It is enjoined upon the Court to ascertain upon what
material proposition of fact or of law, the parties are at variance
and accordingly to frame and record the issues on which the right
decision of the case appears to depend.
11. Once the issues are framed, the onus to prove the
issues is also fixed on the basis of rules of evidence provided
under Chapter-VII of the Indian Evidence Act, 1872. The burden
to prove a particular fact, as a general rule, lies on the person who
asserts such facts. The onus to prove an issue lies upon the
person for whom it becomes incumbent to prove the facts
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constituting the issue. The burden to prove a fact never shifts,
whereas the onus to prove an issue keeps on shifting.
12. Order 18 of the CPC merely provides procedure for
examination of witnesses. Rule 1 of Order 18 provides a right to
the plaintiffs to begin the hearing of the suit unless the claim is
admitted by defendant, in which case, the defendant has right to
begin. Under Rule 2 of Order 18, the party having right to begin is
obliged to state his case and produce his evidence in support of
the issues which he is bound to prove. From the reading of
aforesaid provision of Code of Civil Procedure, it cannot be
implied that it affects the burden to prove a particular fact that lies
on the party in accordance with the provisions of Chapter-VII of
the Indian Evidence Act, 1872. Section 102 of the Evidence Act
prescribes that the burden of proof in a suit or proceeding lies on
that person who would fail if no evidence at all were given on
either side. Thus, the preference to lead evidence does not affect
the burden of proof.
13. Adverting to the facts of the case, the dispute primarily
revolves around the rights of inheritance of the parties to the
property of their predecessor-in-interest. Defendant has
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propounded a Will. Law provides specific mode for attestation of
Will under section 63 of the Indian Succession Act. The Will is
mandatorily required to be attested by at least two witnesses. For
using the Will as evidence, it is mandatorily required under
Section 68 of the Indian Evidence Act that at least one attesting
witness is called upon for purpose of proving its execution. On
the basis of Section 102 of the Indian Evidence Act, it is settled
proposition of law that the propounder of Will has to prove its
attestation in accordance with law so as to make it worthy of
use as evidence. The burden to prove due execution of Will is
always on the propounder. Such burden does not shift. In such
view of the matter, even if the plaintiffs in the instant case begin
the evidence, the burden to prove issue No. 8 will remain on
defendant. In case defendant succeeds in discharging the burden,
it will be for the plaintiffs to prove their allegations regarding Will
being result of fraud, misrepresentation and undue influence.
14. Further, learned Trial Court has also not noticed the
provision of Rule 3 of Order 18 of CPC, according to which, in
case where there are several issues, the burden of proving
some of which lies on the other party, the party beginning may,
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at his option, either produce his evidence on those issues or
reserve it by way of answer to the evidence produced by the
other party; and , in the latter case, the party beginning may
produce evidence on those issues after the other party has
produced all his evidence, and the other party may then reply
specially on the evidence so produced by the party beginning;
but the party beginning will then be entitled to reply generally on
the whole case. This provision normally provides an option to the
plaintiffs to lead evidence on the issues, the burden of proving
which lies on the defendant, or reserve it by way of answer to the
evidence produced by the defendant. This process goes on and
that is why it is said that onus keeps on shifting but burden does
not.
15. At this stage, the exposition made by a Coordinate
Bench of this Court in case Neelam Rai Vs. Surjit Kumar and
others, AIR 2011 Himachal Pradesh 39, on Rule 3 of Order 18
of CPC, can be gainfully referred, which is as under:-
"15. It would be pertinent to deal with the phrase relied upon
by the respondent that the "party beginning will be entitled to
reply generally on the whole case." In case Order 18, Rule 3
of the CPC is read as a whole, it is obvious that when
several issues are framed normally it would be the plaintiff
who would lead evidence if onus to prove certain factual
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issues has been placed on the plaintiff. Therefore, instead of
the word 'party beginning' I am reading in this sub rule the
word 'plaintiff' and instead of the word 'other party', the word
'defendant'. Therefore, where there are several issues, onus
to prove some of which is on the plaintiffs and of some on
the defendants and the plaintiff leads evidence only on the
issues, the onus to prove which is on him, then he can
reserve his right to lead rebuttal evidence on the issues,
onus to prove which is on the defendant. Thereafter, the
defendant would be required to lead evidence on all issues
and then the plaintiff would have the right to lead evidence in
rebuttal only on those issues, the onus to prove which was
on the defendant. This is obvious from the words used in this
rule that in the latter case the party beginning may produce
evidence on those issues after the other party has produced
its own evidence. It is only when the defendant is again
given a right to lead evidence either by way of additional
evidence or otherwise, i.e, in case of a counter claim to lead
further evidence that the plaintiff would get a right to lead
rebuttal evidence again and it is only in this eventuality that
the plaintiff can reply generally on the whole case."
16. Plaintiffs had prayed for reframing/recasting of issues
No. 2 and 9, as noticed above, which did not make any difference
either on the onus to prove such issues or the burden to prove the
facts necessary for proving the issues. Reframing of aforesaid
issues, thus, will not change the consequences to lead evidence
as provided by Rules 1 and 2 of Order 18 of Code of Civil
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Procedure.
17. In view of above discussion, the petition is allowed.
Order dated 09.05.2022, passed by learned Senior Civil Judge,
Court No. 1, Amb, District Una, H.P. in CMA No. 183-VI-2022,
filed in Civil Suit No. 72-1 of 2015 to the extent it rejected the
prayer for amendment of issues No. 2 and 9 is set aside and
application of the petitioner herein/plaintiffs under Order 14 Rule 1
and 5 read with Section 151 of Code of Civil Procedure to above
extent is also ordered to be allowed.
18. Accordingly, the petition is disposed of, so also the
pending miscellaneous application(s), if any.
( Satyen Vaidya )
Judge
14th November, 2022
(sushma)
