IMPORTANT POINT
The court established that the burden of proof lies on the party asserting a claim, allowing for flexibility in who leads evidence first based on case circumstances.

JUDGMENT :

Mr. Gurbir Singh, J.

Challenge in this petition to the orders dated 01.08.2023 and 08.09.2023, passed by learned Additional Civil Judge (Senior Division), Ludhiana (hereinafter referred to as – the Trial Court).

2. Brief facts, as culled out from the paper book, are that plaintiffs/respondents no.1 and 2 (hereinafter called – the plaintiffs) filed a suit for declaration (Annexure P-3) against petitioner/defendant no.1 (hereinafter called – defendant no.1) and proforma respondents no.3 to 6/defendants no.2 to 5, that Kewal Krishan Gulati (husband of plaintiff no.1 and father of plaintiff no.2) died intestate leaving behind the plaintiffs as his only legal heirs and the Will dated 11.09.2001, alleged to have been registered on the same day, is a complete forgery as the said Will was never executed by the said Kewal Krishan Gulati. It was further prayed that the plaintiffs are the exclusive owners of the properties left by late Kewal Krishan Gulati. Further declaration was sought that defendant no.1 was never adopted by Kewal Krishan Gulati. All the documents set up by him claiming himself to be son of late Kewal Krishan Gulati are illegal, null and void. Further relief of possession of the property in question and injunction, restraining defendant no.1 from alienating, disposing of or transferring the possession of immovable or immovable properties to anybody else was also sought.

3. Defendant no.1 appeared and contested the suit. He filed written statement (Annexure P-4), inter alia pleading that he was adopted son of Kewal Krishan Gulati and plaintiff no.1. He was born on 17.07.1962 and was adopted on 13.01.1963 by them. Kewal Krishan Gulati executed a Will dated 11.09.2001 in his favour.

4. From pleadings of the parties, following issues were framed :-

“1. Whether the plaintiff is entitled to declaration that Sh. Kewal Krishan died intestate as prayed for? OPP

2. Whether the plaintiff is entitled to declaration that the alleged will dated 11.09.2001 is forged & fabricated? OPP

3. Whether the plaintiffs are the exclusive owners of the suit properties? OPP

4. Whether the plaintiff is entitled to the declaration that the defendant no.1 was adopted by Kewal Krishan? OPP

5. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP

6. Whether the suit of the plaintiff is not maintainable? OPD

7. Whether the suit is bad for misjoinder of party? OPD

8. Whether the plaintiff has not come to the Court with clean hands? OPD

9. Whether the plaintiff has not properly valued the suit for the purpose of court fee & jurisdiction? OPD

10. Relief.”

5. An additional issue was also framed in the case which reads as under:-

“6(a).Whether the present suit is barred by Order 2 Rule 2 CPC? OPD”

6. An application under Order 14 Rule 5 and Section 151 CPC for framing additional issues and further for directing the defendants to lead the evidence first was moved by plaintiffs on 27.07.2023. Defendant no.1 filed reply to the application. The Trial Court, vide order dated 01.08.2023, allowed the application and framed the following issues:-

“6(b) Whether the Will dated 11.09.2001 was executed by Kewal Krishan Gulati in favour of defendant No.1? OPD

6(c) Whether the defendant no.1 was adopted by Sh. Kewal Krishan Gulati and Smt. Ramesh Rani Gulati as alleged? OPD”

and defendants were directed to lead the evidence first.

7. Thereafter, defendant no.1 moved an application for review of order dated 01.08.2023 and to re-fix the case for evidence of the plaintiff. By passing detailed order dated 08.09.2023, the said application was dismissed by learned Trial Court.

8. Learned counsel for defendant no.1 has argued that the order dated 01.08.2023 was passed on the basis statement of defendant no.1 but defendant no.1 did not make unconditional statement to allow the application but he had made the statement that he had no objection in case the issue regarding Will of Kewal Krishan Gulati and adoption of defendant no.1 are framed but formation of issue no.1