RAVINDRA V. GHUGE, J.

1. The learned Advocate for the Petitioners seeks leave to delete the non contesting Respondent Nos. 2 to 9, who are the original Defendants in RCS No. 273/2013 and are not interested in the dispute between the Petitioners and Respondent No. 1/original Plaintiff. Leave to delete the said Respondents is granted at the risk of the Petitioners. Deletion be carried out forthwith.

2. RULE.

3. Rule made returnable forthwith and heard finally by the consent of the parties.

4. The Petitioners are the original Defendant Nos. 1, 2 and 3 in RCS No. 273/2013. They have filed a common written statement. After the issues were cast on 25.09.2018, there was a recasting of issues on 15.10.2018. Pursuant thereto, the Plaintiff preferred the application Exhibit 80 seeking a direction from the Trial Court under Order 18 Rule 1 of the Code of Civil Procedure to direct the Petitioners/ Defendants to commence the recording of their evidence before the Plaintiff steps into the witness-box. The application Exhibit 80 has been allowed by the Trial Court by the impugned order dated 22.10.2018 and by invoking its powers under Order 18 Rule 1, has directed the Petitioners/Defendants to lead evidence first by concluding that the Defendants will have a right to begin.

5. I have considered the strenuous submissions of the learned Advocates for the respective sides.

6. The learned Advocate for the Petitioners relies upon the following judgments:

(a) The judgment of this Court dated 15.09.2017 delivered in Zainabee Mohammad Bashir and Others vs. Shivkumar and Others, 2018 (2) Mh. L.J. 634 : 2018 (3) All MR 799.

(b) Metafield Coil Pvt. Ltd. vs. Nikivik Tube Industries Pvt. Ltd. 2012 (1) Mh. L.J. 289.

7. The learned Advocate for Respondent No. 1/Plaintiff relies upon the judgment of this Court in the matter of Sandip Sankarlal Kedia vs. Smt. Pooja Sandip Kedia, AIR 2014 Bombay 26.

8. After considering the submissions of the learned Advocates and upon going through the contentions of the parties, I deem it appropriate to reproduce the issues finally cast by the Trial Court on 15.10.2018, as under:

“1. Whether plaintiffs proves that she is having 1/2 share in the suit property as prayed?

2. Whether defendant proves that there is previous partition took place between them as prayed?

3. Whether defendant proves that she has relinquished her share on payment of Rs. 10,000/- as prayed?

4. Whether the plaintiff proves that she is entitled for partition and separate possession of suit property as prayed?

5. Whether the defendant proves that the suit is barred by limitation?

6. Whether the suit is bad for non joinder of necessary parties?

7. Whether defendant proves that all properties are not included in hotchpotch?

8. Whether defendant no. 1 proves that house property no. 644 is self acquired property?

9. What order and decree?”

9. Order 18 Rules 1 and 2 of the Code of Civil Procedure read as under:

“ORDER XVIII

HEARING OF THE SUIT AND EXAMINATION OF WITNESSES

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.

2. Statement and production of evidence:

(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.

(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.

(3) The party beginning may then reply generally on the whole case.

(3A) Any party may address oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct headings written arguments