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Madhya Pradesh High Court · body

2016 DIGILAW 291 (MP)

Sangram Singh v. Ran Vijay Singh

2016-04-06

ALOK ARADHE

body2016
ORDER 1. In this petition, under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 23.4.2014 by which the application preferred by the plaintiff under Order 18 rule 3 of the Code of Civil Procedure dated 12.4.2013 has been allowed and the defendants have been directed to adduce the evidence. 2. Facts giving rise to filing of the writ petitioin, briefly stated, are that the respondent No.1/plaintiff had filed the suit seeking the relief of declaration and permanent injunction. The claim in the suit was based on the ground that the suit property belongs to the joint family and the plaintiff being a member of the joint property is having a share in the same. It is also submitted that partition had already taken effect prior to filing of the suit. The plaintiff had executed a power of attorney in respect of his share in favour of defendant No.1. The plaintiff filed the examination-in-chief of his witnesses in the form of affidavit on 4.4.2013, thereafter, he filed an application under Order 18 rule 3 of the Code of Civil Procedure on 12.4.2013, which has been allowed by the trial Court. 3. Learned counsel for the petitioner while inviting attention of this Court to the provisions of Order 18 rules 1 and 3 of the Code of Civil Procedure submitted that the plaintiff in fact had waived the right to ask the defendants to adduce the evidence as the examination-in-chief in the form of affidavit was filed prior to filing of such an application. On the other hand, learned counsel for the respondent No.1 has placed reliance on the decision in the case of Jhadiram v. Manpyare, reported in 1978 (II) MPWN 63 in support of his submission and has pointed out that the defendant had taken the plea that partition in respect of the suit property had already taken place, therefore, the defendant should have no objection to lead the evidence and in case he succeeds in proving the factum of the partition, the suit of the plaintiff would fail. 4. I have heard learned counsel for the parties and have perused the record. The trial Court vide order dated 28.10.2010 has framed the following issues :- “1. Whether the property mentioned in para-2(I) (ii) and (iii) of the plaint is undivided coparcenery property : 2. 4. I have heard learned counsel for the parties and have perused the record. The trial Court vide order dated 28.10.2010 has framed the following issues :- “1. Whether the property mentioned in para-2(I) (ii) and (iii) of the plaint is undivided coparcenery property : 2. Whether all the legal heirs of Thakur Tej Singh are joint owner in possession of the said property in question ? 3. Whether defendant No.1 being power of attorney holder of plaintiff had illegally sold away the property in question and retained the sale consideration ? 4. Whether the defendants No.1 and 2 have not right and title to dispose the property house and bada situated in Mahua Kothi, Rampura and Bhitarwar unless and until the same is partitioned and bound ? 5. Relief and cost.” 5. The relevant extract of Order 18 rules 1 and 3 of the Code of Civil Procedure reads as under :- “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 alleged 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. 3. Evidence where several issues -- Where there are several issues, the burdeen 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 later 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 whose case.” 6. Admittedly in the instant case, the resondent No.1/plaintiff had filed his examination-in-chief in the form of affidavit on 4.4.2013. Therefore, in the considered opinion on 4.4.2013. Therefore, in the considered opinion of this Court, in view of Order 18 rules 1 and 3 of the Code of Civil Procedure, the plaintiff had waived his right to insist the defendant to lead evidence at that point of time. Therefore, in the considered opinion on 4.4.2013. Therefore, in the considered opinion of this Court, in view of Order 18 rules 1 and 3 of the Code of Civil Procedure, the plaintiff had waived his right to insist the defendant to lead evidence at that point of time. Beside that in fact the plaintiff has to prove his own case. The decision relied upon by the learned counsel for the respondent No.1 is of no assistance to him as in the facts of that case the plaintiff had not begun his evidence and besides that the aforesaid decision is reported in Madhya Pradesh Weekly Notes and the decision has not been reproduced in toto and this Court is unable to find out any error in the aforesaid issues framed by the trial Court. The impugned order suffers from the error apparent on the face of record. Accordingly, it is quashed. The application under Order 18 rule 3 of the Code of Civil Procedure, preferred by the plaintiff/respondent No.1, is rejected. The trial Court shall direct the plaintiff to proceed his evidence and shall proceed with the trial. 7. Accordingly, the writ petition is disposed of.