Rajasthan High Court - Jodhpur

Parasmal Surana vs Prakashmal Surana (2025:Rj-Jd:7515) on 6 February, 2025

Author: Nupur Bhati

Bench: Nupur Bhati

[2025:RJ-JD:7515]

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
                    S.B. Civil Writ Petition No. 3887/2025

Parasmal Surana S/o Shri Umedmal Surana, Aged About 63
Years, R/o 202-A Surana Bhawan, First C Road Sardarpura,
Jodhpur.
                                                                       ----Petitioner
                                       Versus
1.       Prakashmal Surana S/o Shri Umedmal Surana, Resident
         of 1 A, Arjav Buliding No. 2, Surgeon Society, City Light
         Area, Surat at present R/o 202-A Surana Bhawan, First C
         Road Sardarpura, Jodhpur.
2.       Ganpat Mal Surana S/o Late Shri Umedmal Surana, R/o
         16/214, Chopasani Housing Board, Jodhpur.
3.       Lrs Of Late Smt. Kesar Gang, Through Lrs.
3/1.     Rajesh Gang S/o Shri Chanchalmal Gang, R/o 17 E, Raika
         Bagh, Jodhpur
3/2.     Smt. Madhu Kumbhat W/o Shri Bhupendra Kumbhat, R/o
         Kajiwada, Moti Chowk , Jodhpur.
4.       Smt. Prasan Mehta D/o Late Shri Umedmal Surana, W/o
         Shri Mahaveer Raj Mehta, R/o Sector 9/891 Anand Niwas,
         Malviya Nagar, Jaipur.
5.       Lrs of Smt. Chandrakanta Jain, Through Lrs
5/1.     Shellu Jain D/o Late Shri Lakhpat Jain, R/o 16/213,
         Chopasani Housing Board, Jodhpur
5/2.     Siddarth Jain S/o Late Shri Lakhpat Jain, R/o 16/213,
         Chopasani Housing Board, Jodhpur
6.       Smt Salra Bafnna D/o Late Shri Umedmal Surana, W/o
         Shri   Swaroopchand            Bafna      R/o      504,    Divya   Darshan
         Apartment, Near Agarwal Samaj Ghoddhod Road Surrat
         Gujrat.
                                                                    ----Respondents


For Petitioner(s)            :     Mr. Shanker Singh Rajpurohit
For Respondent(s)            :     Dr. A.A. Bhansali




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                 HON'BLE DR. JUSTICE NUPUR BHATI

Order 06/02/2025

1. The present writ petition has been filed with the following

prayer:

"By an appropriate writ, order or direction, the order dated 01.02.2025 (Annexure-6) passed by the learned Additional District & Sessions Judge No.03, Jodhpur Metro, Jodhpur in pending Civil Original Suit No.193/2009 (Prakashmal Surana Vs. Ganpatmal & Ors.), may kindly be quashed and setaside and the Civil Misc. Application filed by the defendant No.2/petitioner under Order 18 Rule 3 readwith 151 CPC may kindly be allowed as prayed."

2. Brief facts of the case are that the respondent No.1/plaintiff

had filed one suit for partition and permanent injunction along

with one application for temporary injunction against the

petitioner and other defendants. After service of notice, the

petitioner filed his written statement and denied the averments,

as stated in the suit. It was stated in the written statement that

the respondent/plaintiff had filed the suit on false and fabricated

grounds because the property in question belongs to the petitioner

inasmuch as during the lifetime of Late Shri Ummedmal Surana

(father of the petitioner) the property in question came in the

share of the petitioner on the basis of oral partition in the year

1992 and the petitioner is having the possession since then.

3. After service of notices, the defendants No.1 and 3 to 5 had

also filed their written statement and supported the contentions of

the plaintiff. The learned trial Court had framed total 9 issues and

initiated trial of the case for adjudication. During the pendency of

the suit, the petitioner had filed an application (Annexure-5) on

13.01.2025 under Order 18 Rule 3 read with Section 151 of CPC

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while praying to take the statement and evidence of defendant

No.2 after the evidence of rest of the defendants. The learned trial

Court vide its order dated 01.02.2025 (Annexure-6) had dismissed

the said application.

4. Learned counsel for the petitioner submits that the learned

trial Court has committed an error while rejecting the application

preferred by the petitioner under Order 18 Rule 3(A) of the CPC as

the plaintiff and other defendants No.1, 3, 4 and 5 are supporting

parties to each other and the same is clear from their stand in the

suit. He also submits that if the evidence of defendant No.1, 3, 4

and 5 is recorded before the evidence of petitioner/defendant

No.2, then the same may be helpful to the petitioner/defendant to

prove the issues framed by the learned trial Court. He also

submits that the onus of proving the issues is on the

petitioner/defendant No.2 and thus in such circumstances, the

parties who are supporting the respondents/plaintiffs are directed

to lead the evidence prior to the present petitioner then there are

chances that the defendants supporting the plaintiff may

disintegrate the evidence of present petitioner. Learned counsel

for the petitioner places reliance upon the judgment dated

20.04.1989 passed by the Madras High Court in the case of

Ayyasami Gounder & Ors. Vs. T. S. Palanisami Gounder reported

in AIR 1990 Madras 237.

5. Learned counsel for the respondent/plaintiff vehemently

opposes and submits that SBCWP No.9106/2023 was filed by the

respondent/plaintiff in which vide order dated 23.08.2023, a

coordinate Bench of this Court has directed the learned trial Court

to decide the pending Civil Suit No.11626/2014 (193/2009)

[2025:RJ-JD:7515] (4 of 6) [CW-3887/2025]

(Prakash Mal Surana Vs. Ganpat Mal Surana & Ors.) expeditiously

and preferably within a period of one year. He also submits that

the petitioner/defendant is trying to cause delay in the

adjudication of the suit by filing such an application. He also

submits that the statement of learned counsel for the petitioner

that all the defendants are supporting the respondent/plaintiff, is

incorrect as defendant/respondent No.3 is rather supporting the

petitioner/defendant No.2. He also submits that the burden to

prove the first two issues is upon the respondent/plaintiff and the

for the rest of the issues burden is upon defendant

No.2/petitioner, therefore, he cannot take the plea that the other

defendants who are the proforma respondents should be directed

to lead the evidence first. Learned counsel for the

respondent/plaintiff places reliance upon the judgment dated

07.01.2014 passed by Hon'ble Apex Court in the case of Union of

India & Ors. Vs. Vasavi Co-op. Housing Society Ltd. & Ors.

reported in 2014 (2) SCC 269.

6. Heard learned counsel for the parties.

7. This Court, finds that the petitioner is unable to demonstrate

the reason, as to why the defendants No.1, 3 to 5 be directed to

lead evidence prior to the present petitioner/defendant No.2.

Further, the petitioner/defendant has also been unable to establish

as to what prejudice would be caused to him if he is not allowed to

lead evidence at a later stage then the other witnesses who are

supporting the respondent/plaintiff. This Court finds that the

Hon'ble apex court in Jami Venkata Suryaprabha & Anr. V. Tarini

Prasad Nayak & Ors.[Special Leave Petition (Civil) No.

29045/2024, decided on 09.12.2024] has made pertinent

[2025:RJ-JD:7515] (5 of 6) [CW-3887/2025]

observations regarding the Order XVIII Rule 1 which is being

reproduced as under:

18. Order XVIII Rule 1 indeed provides for plaintiff's right to begin the evidence but not the court's obligation to ask the plaintiffs to begin first. There is no impediment for the court to call upon either party to lead evidence first, depending upon the facts and circumstances of the case and the nature of the issues framed. Neither party can insist that the other one should be asked to lead it first. It all depends upon what the Court deems proper in the circumstances. Where it finds that defendant's plea strikes of the root of the case, there would be no hitch in asking him/her to prove such plea first which can lead to disposal of the case. There can be no watertight compartmentalisation in matters of justice and all rules of procedure are designed and directed to achieve and secure ends of justice."

Thus, it is evident that the neither party can insist that the other

one should be asked to lead it first and it is upon the court to call

upon the either party to lead evidence first depending upon the

facts and circumstances of the case and nature of the issues

framed. In the present case it is important to note that a

coordinate bench of this court in the case of Prakash Mal Surana

Vs. Ganpat Mal Surana & Ors. (SBCWP No.9106/2023) decided on

23.08.2023 had directed the learned trial court to decide the Civil

Suit No.11626/2014 (193/2009) pending between the parties to

the instant writ petition.

8. This Court concurs with the order dated 01.02.2025

(Annexure-6) passed by the learned trial Court wherein it is