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2013 Supreme(Bom) 2296
High Court of Judicature at Bombay
ROSHAN DALVI, J.
Sandip Sankarlal Kedia
Versus
Smt. Pooja Sandip Kedia
Writ Petition Nos.7615 of 2013 & 8555 of 2013
Decided on : 21-11-2013
For the Petitioner:Sharan Jagtiani, Pavan Patil, Advocates.
For the Respondent:R.T. Lalwani, i/b Prakash Mahadik, Advocates.
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Headnote:Civil Procedure Code, 1908 - Order XVIII, Rules 1 and 2 - Right to begin. - Defendant having right to begin is enjoined to state his case and produce his evidence in support of issue which is bound to prove. - In the instant case defendant would have obligation, responsibility, duty and liability to prove that material proposition or fact made by him as additional fact in his written statement. It is this obligation, responsibility, duty and liability which is termed ’right’ to begin. Expression ’right to begin’ in sub-title of Order XVIII, Rule 1 of CPC and in its contents is, therefore, not a right such as privilege which can be reserved or waived. It would have to be exercised if additional fact alleged by defendant upon which issue has to be framed has to be proved by defendant for issue to be determined by Court.
It is, therefore, that this enjoinment is laid down in Order XVIII, Rule 2 of CPC. In such suit on date of hearing under provision defendant who has ’right to begin’ is enjoined to state his case and produce his evidence in support of issue which he is bound to prove if he would get plaintiff non-suited. Expression ’shall’ in Order XVIII, Rule 2 of CPC makes this abundantly clear. Hence Order XVIII, Rule 2, CPC lays down situation in which party would have right (which is actually his obligation to begin his evidence), Order XVIII, Rule 2 of CPC lays down that party shall produce such evidence to prove issue arising from facts alleged by him.
Evidence had begun. Only said issue of fact had to be determined. Husband had to discharge burden that lay on him on his case of repaying wife consideration that she paid for disputed flat, onus of which lay, squarely upon him. Most favoured ’right’ of party in our justice system is right to delay trial. Family Court granting 5 adjournments to husband to prove his case was not even warranted.
Family Court was again right in accepting last chance and closing evidence of husband since husband neither appeared nor filed his affidavit of examination in chief nor in any manner showed any evidence of husband to prove his tall claim of repayment of entire consideration of disputed flat to wife and in fact gave no instructions whatsoever to his advocate.
1. The parties are husband and wife. The trial in the petition relating to their immoveable property is ripe for hearing. The issue with which the parties are at dispute is who would lead evidence first. It may be mentioned that the procedural law in that regard is clear. It is contained in Order 18 Rules 1 and 2 of the Civil Procedure Code (CPC).For a matter which appeared to be rather inconsequential for a party who would require to prove a specific averment made, the extent of contest in who would lead evidence first appeared to be initially rather needless but has proved to be an interesting point of law which requires reference, analysis and consideration of the salutary provision made with a particular aim and object and its appreciation and analysis by Courts.
2. The initial petition has been filed by the wife for declaration that she is the owner of one of the two flats purchased by the parties in their joint names for which she alone paid consideration. Aside from such declaratory relief the other incidental reliefs prayed for by her are in respect of the deletion of the husband's name from that flat, the recovery of possession by her partitioning the two flats so as to separate that flat and for compensation to be paid to her for the use of that flat by the husband. The wife applied for interim relief of partition and injunction against the entry of the husband in that flat in the Family Court.
3. The most important aspect or fact is that the payment of the entire consideration by the wife for that flat, being one of the two flats purchased by the parties, is admitted by the husband. Consequently wife's petition that she be declared the sole owner of the flat would not call for much argument or even determination by the Court. She having paid the consideration for one of the two flats which came to be used by the parties jointly would certainly be entitled to declaration in that behalf and consequently the partition of the two flats so as to give her possession of that one flat. Pending such an exercise to be done in the petition or at its interim stage, the user of the flat by the husband would certainly entail compensating the wife in that behalf – not in the position of a wife but in the position of a separate owner of half property being the one of the two flats.
4. Orders in that regard have come to be passed by the Family Court and later by this Court. The Family Court directed partition. This Court found nothing incorrect in such order. The husband seriously contested the partition. Hence this Court observed that though the order of the trial Court granting temporary partition could not otherwise be faulted in view of the compensation claimed by the wife, the wife could be compensated pending the petition.
5. The husband's contest to partition and compensation was upon the main premise that he had returned the consideration paid by the wife to the wife. If that was so the wife would no longer be an owner of the flat. Consequently she would not be entitled to claim recovery of the flat or to partition the two flats or even to be compensated for the user of the flat by the husband.
6. If one scientifically culls out these aspects, the dispute between the parties becomes extremely narrow. It would be to see the claim of the wife as the owner. The document shows the names of both the parties. The wife has claimed the payment of the entire consideration. The payment is admitted. Nothing further need be unearthed. The husband's claim is that he has repaid that consideration. That would turn the table. The husband would become the owner. The wife would have no rights.
7. The parties are not at dispute with regard to the claim of the wife to ownership based upon the payment of consideration which is admitted. Consequently that fact need not be proved. On that admitted fact there would be no issue between the parties that would be required to be framed by the Court and answered upon the evidence led by the pa
