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BOMBAY HIGH COURT
Roshan Dalvi, J.
Sandip Sankarlal Kedia —Petitioners
versus
Pooja Sandip Kedia —Respondent
Writ Petition Nos. 7615 and 8555 of 2013
Decided on 21.11.2013
For the Petitioner in both Petitions:Sharan Jagtiani a/w Mr. Pavan Patil, Advocates.
For the Respondent in both Petitions:R.T. Lalwani i/b Mr. Prakash Mahadik, Advocate.
IMPORTANT POINT
Right to begin evidence cannot be waived or reserved.
Headnote:Civil Procedure Code, 1908—Order 18 Rules 1 and 2—Production of evidence—Right to begin—Property dispute—Party beginning evidence is allowed to lead evidence only on those issues for which burden lies upon him and reserve evidence on other issues by way of rebuttal to evidence produced by other party—It is erroneous to suggest that though husband has right to begin, husband can waive that right or reserve it—Court has power and duty to pass directions upon application of any of parties as also by itself upon considering separate averments of parties in pleadings to efficiently direct order of leading of evidence as legislated discipline of work—Family Court was right in rubbishing claim of husband that he did not wish to lead evidence at this stage—There was no other stage—There was no better stage— Wife would lead evidence, if any, that she would require to lead—Proceeding which commenced upon a truthful case admitted by husband would see its end upon additional case of husband that never is shown—Writ petitions dismissed with costs of Rs.50,000/ . (Paras 48, 58, 67, 68, 70 and 71)
Result: Writ petitions dismissed with costs.
Roshan Dalvi, J.—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 le
