The interpretation of Order 14 Rule 2 of the CPC and its application to the framing of issues and onus of proof in a civil suit.

BADAR DURREZ AHMED, J.

1. The present appeal has been filed by defendant nos. 1&2 being aggrieved by the order dated 16.09.2016 passed in CS(OS) 40/2016. The said suit was filed by the respondent nos. 1&2. By virtue of the impugned order dated 16.09.2016 issues have been framed and certain directions have been given with regard to the manner of conduct of the trial.

2. Three points have been raised by the appellants. The first point is that the learned Single Judge could not have directed the treatment of issue no.1 as a preliminary issue as the same was not in line with the provisions of Order 14 Rule 2 of the Code of Civil Procedure, 1908 (‘CPC’). The second point urged by the learned counsel for the appellants was that the onus of issue no.2 could not have been placed on the defendant nos. 1&2, that is, the appellants herein. The third point raised by the learned counsel for the appellants pertains to the directions given by the learned Single Judge that the defendant nos. 1&2 (the appellants herein) should lead evidence first. This was, of course, based on the premise that the onus of the main issue was on defendant nos. 1&2.

3. The learned counsel for the respondents submitted that the issues have been correctly framed and the onus of the issues has been correctly placed on the respective parties. It was submitted that no interference with the impugned order was called for.

4. Before we proceed with the examination of the rival contentions, it would be appropriate if we set out the issues which were framed by the learned Single Judge. They are as under:-

“(I) Whether the unregistered Memorandum of Partition dated 11th May, 1990 is capable of making the defendant No.l absolute owner of the property? OPD-1&2

(II) - Whether the Memorandum of Partition dated 11th May, 1990 and two Receipts of the same date of Rs.2 lakhs each purported to be executed by the plaintiffs have been executed by the plaintiffs or the signatures thereon are not of the plaintiffs? OPD-1&2

(III) Whether the suit claim is within time? GPP

(IV) Whether the suit claim is barred by time for the reason of the plaintiffs having acquiesced to the Memorandum of Partition and Receipts dated 11th May, 1990? OPD-1&2 (V) Whether the suit is not properly valued for the purposes of court fees and jurisdiction and if so, to what effect? OPP

(VI) Relief.”

5. By way of background, we may point out that in the suit filed by the respondent nos. 1&2, inter alia, a decree of declaration in their favour and against the defendants was sought whereby the Memorandum of Partition dated 11.05.1990 and two Receipts dated 11.05.1990 were sought to be declared as illegal, null and void and of no effect and not binding upon the respondent nos. 1&2. Inter alia, a prayer was also made seeking a decree of declaration, in favour of the respondent nos. 1&2 and against the defendants, that the gift deed dated 26.11.2012 executed by the defendant no.1 in favour of the defendant no.2 was illegal, null and void and of no effect insofar as it related to the plaintiffs’ alleged 2/3rd share in the property No. 12/18, East Punjabi Bagh, New Delhi- 110026. A prayer was also made for a preliminary decree of partition declaring the plaintiff nos. 1&2 (respondent nos. 1&2 herein) as owners of 1/3rd share each in property no. 12/18, East Punjabi Bagh, New Delhi- 110026, and that the balance 1/3rd share belonging to either defendant no.1 or defendant no.2 and for a Local Commissioner to suggest a mode of partition and to divide the property subsequently by metes and bounds in terms of the preliminary decree.

6. From this it is evident that suit was essentially one for declaring the Memorandum of Partition and the two Receipts as being illegal, null and void and for declaring the gift deed also being illegal, null and void and for a decree of partition. Other reliefs were also claimed but in essence this was the nature of the suit.

7. It is in this context that the issues have been framed by the learned