V. C. DAGA, J.

( 1 ) RULE returnable forthwith. By consent of parties petition is heard finally.

( 2 ) THIS petition is directed against the order passed by the Civil Judge, Senior Division, alibag below Exh. 62 in Special Civil Suit No. 59 of 2000, whereby the trial Court in exercise of powers under order 18 rule 16 of bode of Civil Procedure, 1908 ("c. P. C. "for short) allowed defendant No. 2 to lead evidence before the evidence of the plaintiffs is opened. Outline Chronology :

( 3 ) THE outline chronology giving rise to the present petition, in nutshell is that, the respondent Nos. l and 2/ original plaintiffs filed a suit being Special Civil Suit No. 59 of 2000 in the court of Civil Judge, Senior Division, Alibag for declaration that they are the children born to respondent No. 3/ original defendant No. 2 and Shri damodar Sitaram Magar, who, was original defendant no. l in the suit, left for heavenly abode during the pendency of the suit. The petitioners herein are the original defendant Nos. 3 to 6. Parties to the petition are hereinafter referred to in their original capacity for the sake of clarity.

( 4 ) THE contention of the plaintiffs in the suit is that defendant No. 2 was married to late damodar according to the Hindu rights. They stayed together for about two years. However, in view of difference of opinions between both of them they obtained customary divorce which, in the submission of the plaintiffs, was not legal and valid in view of the provisions of the HINDU MARRIAGE ACT, 1955.

( 5 ) THE plaintiffs further contention is that in spite of subsistence of the first marriage of late Damodar with defendant No. 2 he again married with defendant No. 3 somewhere in the year 1970. However, in spite of second marriage, late damodar continued to cohabit with defendant No. 2 and that has given birth to the plaintiffs. The plaintiffs, in this backdrop, prayed fordecree of declaration that the plaintiffs are the children of late Shri Damodar Sitaram magar and defendant No. 2.

( 6 ) ON being noticed, defendant Nos. 3 to 6 appeared and filed their written statement denying the case pleaded by the plaintiffs, whereas defendant No. 2 admitted contentions and claim of the plaintiffs in toto. In view of the rival pleadings, the issues were framed. The suit was posted for recording evidence of the parties.

( 7 ) BEFORE plaintiffs could open their evidence, defendant No. 2 moved an application purported to be an application under order 18 rule 16 (Exh. 62) seeking permission of the Court to lead evidence prior to the evidence of the plaintiffs, contending that she was not keeping well and had already suffered heart-attack. This application was opposed by defendant Nos. 3 to 6, present petitioners. However, the trial Court was pleased to allow the said application (Exh. 62) vide it order dated 20th April, 2004. This order is a subject matter of challenge in this petition filed under Article 227 of the Constitution of India. The Arguments :

( 8 ) MR. OAK, learned counsel for the petitioners raised following contentiones- (A) That under order 18 rule 16 of C. P. C. the defendant No. 2 could not have been permitted to lead evidence prior to the evidence of the plaintiffs. (B) That the burden to prove the suit claim being on the plaintiffs; it was necessary for them to first step into the witness box and offer their evidence and make themselves available for cross examination. (C) That defendant No. 2 has filed her written statement admitting entire case of the plaintiffs pleaded in the plaint and no case was made out by her on additional facts that the plaintiffs are not entitled to any part of the relief which they are seeking in the suit. (D) That order 18 rules 1 and 3a deal with witnesses to be examined. These provisions do not permit the Court to allow any defendant to lead any evidence prior to the evidence of the plaintiffs. The defendant No. 2 not being a witness of the plaintiffs could not have moved her application un