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WP-11281-2021

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 11281OF 2021

Mohd. Sajid s/o Modh. Dawood

Age- 47 years, Occ- Business

R/o. Chamba Chouk, Metro Tower,

Aurangabad, Tq. & Dist. Aurangabad.

PETITIONER

[Orig. Plaintiff]

VERSUS

Leelabai Shantilal Muthiyan

Age- 71 years, Occ- Household,

R/o. 119, Samarth Nagar, Aurangabad

Tq & Dist. Aurangabad.

RESPONDENT

.......

Mr. Punit S. Mehta, Advocate for the petitioner.

Mr. Pramod F. Patni, Advocate for Respondent.

.......

[CORAM : NITIN B. SURYAWANSHI, J.]

RESERVED ON: 7

^th JULY, 2022

PRONOUNCED ON- 26

^th JULY, 2022

ORDER :

1.

The challenge in this petition is to the order dated

18.08.2021, below Exhibit-66 in Special Civil Suit No. 182/2017,

passed by the learned 9^th Joint Civil Judge, Senior Division,

Aurangabad, thereby rejecting the application filed by the

petitioner seeking direction under Order XVIII Rule 3 of Code of

Civil Procedure.

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WP-11281-2021

2.

The petitioner/original plaintiff filed suit for specific

performance of contract and injunction. The suit was resisted by

the respondent/defendant by filing written statement. The

plaintiff examined himself and his witness Mohd. Imran Paryani

(PW2). Thereafter, defendant led her evidence. After closure of

evidence of defendant, the plaintiff again examined PW2 for

giving evidence in rebuttal to issue No. 3 and 4. After examining

PW2, the plaintiff closed his evidence by filing purshis at Exhibit-

47. Thereafter, present application Exhibit-66 is filed by the

plaintiff seeking direction to the defendant to advance arguments

first. Said application is rejected by the Trial Court. Hence, the

present petition.

3.

Heard the learned advocate for the petitioner and

learned advocate for the respondent.

4.

Indisputably,the petitioner/plaintiff has led his

evidence and reserved his right to adduce evidence in rebuttal to

issue no. 3, by filing purshis at Exhibit-35. Thereafter, defendant

has led her evidence and after she closed her evidence, plaintiff

again examined PW2 in rebuttal to issue no. 3 and 4 and then

has closed his evidence. Admittedly, defendant has not

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WP-11281-2021

thereafter led any evidence. Since the plaintiff has closed his

evidence last he has to advance arguments first in terms of

Order XVIII Rule 3. The plaintiff will have the opportunity to

reply the arguments advanced by the defendant.

5.

In the light of aforesaid facts, application filed by the

petitioner/plaintiff was misconceived and the same is rightly

rejected by the Trial Court. The Trial Court has rightly

appreciated the facts and has correctly applied the provisions of

Order XVIII Rule 3 and ratio in P.T. Anklesaria and others Vs.

Union of India and others [1974, Mh.L.J.891], while rejecting the

application of the petitioner.

6.

In P.T. Anklesaria (supra) relied upon by the

petitioner, the defendant had led his evidence last and therefore,

it was held that he is required to address the Court first. In the

case in hand, admittedly, the petitioner/plaintiff has led his

evidence last and therefore, he is required to address the Court

first.

7.

The Trial Court has passed a well reasoned order and

there is no illegality or perversity in the impugned order. No case

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WP-11281-2021

is made out by the petitioner to warrant interference in the extra

ordinary writ jurisdiction. The writ petition is therefore

dismissed. No costs.

[NITIN B. SURYAWANSHI, J.]

Bhagyawant Punde