Mohanlal vs Rameshwar And Others

Subodh Abhyankar, J

1] Heard finally with the consent of the parties.

2] This miscellaneous petition has been filed by the petitioner/plaintiff under Article 227 of the Constitution of India against the order dated 05.10.2019, passed in Civil Suit No.1A/2015 by Ist Civil Judge, Class-I, Alirajpur (M.P.) whereby the application filed by the petitioner/plaintiff under Order XVIII Rule 3 of CPC to defer his evidence till the defendants have led their evidence has been rejected.

3] In brief, the facts of the case are that the suit has been filed by the plaintiff for partition, possession and permanent injunction against the respondents, the issues have already been framed and the plaintiff is to lead his evidence, however, before commencing with his evidence, the plaintiff has filed an application under Order XVIII Rule 3 of CPC for deferring his evidence in respect of issues no. 5, 6, 7, 9 and 10 , which provides that “the party beginning the evidence may at this option produce the evidence on those issues or reserve it by way of answer to the evidence produced by the other party the burden of proving the same lies on the other party.”

4] In brief, the facts of the case are that the suit has been filed by the petitioner/plaintiff for partition, possession and permanent injunction in which after the defendant filed their written statement, the learned Judge of the trial Court has framed as many as 11 issues, and the plaintiff is to lead his evidence. However, an application under Order XVIII Rule 3 of CPC has been filed by the plaintiff stating that the burden of proof to prove the issues Nos.5, 6, 7, 9 and 10 is on the defendants, hence the plaintiff desires to lead his evidence in respect of the aforesaid issues after the defendants have led their evidence in respect of the said issues. The aforesaid application is opposed by the defendants contending that whether the evidence is required to be given by the defendants in respect of issue Nos.5,6,7,9 and 10 cannot be decided at this stage and only after the plaintiff has led his evidence that the defendants shall lead their evidence, if so required. The learned Judge of the trial Court has rejected the application on the ground that the averments made by the defendants are in the nature of denial of the plaint's averments, hence, it cannot be presumed that the evidence is required to be led by the defendants in respect of those issues.

5] Counsel for the petitioner has submitted that as in their reply to the application under Order XVIII Rule 3 of CPC, the defendants have also stated that they might lead the evidence in respect of those issues, after the evidence of the plaintiff is over, which clearly reveals that the issues have been framed at their instance only. Thus, it is submitted that the impugned order be set aside and the application filed by the plaintiff under Order XVIII Rule 3 of CPC be allowed.

6] Counsel for the respondents, on the other hand, has opposed the prayer and it is submitted that no illegality has been committed by the learned Judge of the trial Court as it is the defendants' right to lead evidence after the plaintiff has completed his evidence.

7] Heard counsel for the parties and perused the record.

8] So far as the provisions of Order XVIII Rule 3 of CPC is concerned, the relevant excerpts of the same read as under:-

“Order XVIII Rule 3 of CPC

Hearing of the suit and examination of witnesses.

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EVIDENCE WHERE SEVERAL ISSUES.--

Where there are several issues, the burden of proving some of which lies on the party, the party beginning may, 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.”

9] In the application filed by the plaintiff under Order XVIII Rule 3 of CPC, he has referred the issues No.5, 6, 7, 9 and 10 about which, according to the plaintiff, the burden of proof lies on the defendants. The trial Court has framed as many as 11 issues, which are as hereunder:-

10] From the perusal of issue Nos.5,6, 7, 9 and 10 viz.-a-viz., the special pleadings made by the defendants, it is apparent that the special pleadings are the facts, which the defendants have pleaded in rebuttal of the plaintiff's claim, which cannot be said to be the denial of the petitioner's plaint. In such circumstances, since the issue Nos.5,6,7, 9 and 10 have arisen out of the special pleadings of the defendants, this Court is of the considered opinion that the burden to prove the special pleadings is on the defendants only.

11] In such circumstances, this Court is of the considered opinion that the application filed by the plaintiff under Order XVIII Rule 3 of CPC ought to have been allowed by the learned Judge of the trial Court, thus, an error has apparently been committed by the learned Judge of the trial Court. Accordingly, the impugned order dated 05.10.2019 is hereby set aside, and the application filed by the plaintiff under Order XVIII Rule 3 of CPC is allowed and the learned Judge of the trial Court is requested to proceed further in the matter, in accordance with the provisions of Order XVIII Rule 3 of CPC.

12] Since the plaintiff is required to lead his evidence in respect of the other issues, and the stay order was in operation in the suit, the plaintiff is also directed to lead his evidence in respect of the other issues without further delay.

13] With the aforesaid directions, the petition stands disposed of.