IMPORTANT POINT
Examination of witnesses – Court has no power to issue a direction to defendant compelling him to lead his evidence before plaintiff adduces his evidence.

ORDER (ORAL )

This writ petition under Article 227 of the Constitution of India is filed by the defendant with a prayer to set aside the order dated 10.11.2021 passed in O.S.No.193/ 2019 by the Court of Principal Senior Civil Judge and CJM, Mangaluru, D.K., on the memo dated 27.09.2021 filed on behalf of the plaintiffs.

2. Heard the learned counsel appearing for the parties.

3. Plaintiffs have filed O.S.No.193 of 2019 before the jurisdictional civil Court, Mangaluru D.K, District against the petitioner herein seeking the relief of partition and separate possession of the suit schedule ‘A’ property and to allot 1/5th share each in the suit schedule ‘A’ property. The petitioner / defendant had opposed the suit claim by filing a detailed written statement and it was contented that the father of the plaintiffs and defendant, namely K. Ananda had executed a will dated 11.11.2007, bequeathing the plaint item No.3 in his favour. In the said suit, a memo was filed on behalf of the plaintiffs stating that at present they have no evidence to lead and reserving their right to lead rebuttal evidence, the defendant may be asked to lead evidence. The said memo was opposed by the defendant by filing objection. The trial Court, vide the order impugned dated 10.11.2021 has taken the evidence of plaintiffs as ‘nil’ for the time being subject to their right to lead rebuttal evidence and has called upon the defendant to lead evidence. Being aggrieved by the same petitioner / defendant is before this Court.

4. Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that the burden to prove issue Nos.1 and 3 lies on the plaintiffs and the burden on the defendant is only to prove issue No.2. Therefore, the plaintiffs ought to have led their evidence on issue No.1 and issue No. 3 and it is only in respect of issue No.2 they could have sought permission of the trial Court to lead rebuttal evidence. The trial Court has failed to appreciate this aspect of the matter and has erred in granting the prayer made in the memo by the plaintiffs. Learned counsel for the respondent has argued in support of the order impugned and submits that the Court has a discretion to call upon any of the parties to lead evidence depending upon the facts and circumstances of the case and the issues framed by the Court. In support of his arguments, he has placed reliance on the judgment of Rama Krushna Mohanty and Another v. Bala krushna mohanty and others - C.M.P.No.262 of 2016.

5. Considering the rival pleadings,, the Trial Court in the present case has framed the following issues:

“1. Whether the plaintiffs prove that they are entitled to 1/5th share each with separate possession over plaint ‘A’ schedule properties?

2. Whether defendant (Propounder) would discharge his burden of proving the alleged Will date 11.11.2007 said to have been duly executed by his father-K. Ananda bequeathing plaint item No.3 property in his favour?

3. Whether the plaintiffs further prove that the defendant is liable to render true and correct account of the income of paint ‘A’ schedule properties and to pay the plaintiffs their 1/5th share of income?”

4. Whether the plaintiffs are entitled to relief as sought for?

6. The burden of proving all the issues except issue No.2 is on the plaintiffs. The burden of proving issue No.2 is as against the sole defendant.

7. Order XVIII Rule of the Code provides for hearing of the suit and examination of witnesses. Rule 1 of Order XVIII provides for the right to begin with examination of witness and Rule 3 provides for the procedure to produce when there are several issues. Order XVIII Rule 1 and 3 of CPC reads as follows:-

Order XVIII : Hearing of the suit and examination of witnesses.

“Rule 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