Case Note & Summary
The case arises from a partition suit filed by the plaintiffs (respondent no.1 and others) in the Civil Judge, Senior Division, Malegaon, seeking partition and separate possession of properties mentioned in the suit. The petitioners, original defendant nos.1 to 7, claimed rights under a gift deed dated 27th May, 1988, executed by Hazarabi in their favour. Defendant nos.8 to 11 supported the plaintiffs' case and prayed for a decree of partition. The petitioners filed an application under Order 18 Rule 2 of the Code of Civil Procedure, 1908, seeking a direction that defendant nos.8 to 11 lead their evidence in preference to all other defendants, including the petitioners. The trial court rejected this application by order dated 23.8.1993. The petitioners challenged this order in the High Court. The High Court held that the burden of proof lies on the party who would fail if no evidence is led. Since the petitioners claimed under the gift deed, they bore the burden to prove its validity. The court found no exceptional circumstances to justify shifting the onus to defendant nos.8 to 11, who were merely supporting the plaintiffs. The petition was dismissed, and the trial court's order was upheld.
Headnote
A) Civil Procedure - Order 18 Rule 2 CPC - Burden of Proof - Direction to Co-Defendants to Lead Evidence First - The petitioners, original defendant nos.1 to 7, sought a direction that defendant nos.8 to 11, who supported the plaintiffs' case, should lead evidence before them. The trial court rejected the application. The High Court held that the burden of proof lies on the party who would fail if no evidence is led. Since the petitioners claimed under a gift deed, they bore the burden to prove its validity. The court found no exceptional circumstances to deviate from the normal rule that the party asserting a fact must prove it. (Paras 1-5)
Issue of Consideration
Whether the trial court was justified in rejecting the application of defendant nos.1 to 7 (petitioners) seeking a direction to defendant nos.8 to 11 to lead evidence in preference to all other defendants under Order 18 Rule 2 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order dated 23.8.1993 rejecting the petitioners' application under Order 18 Rule 2 CPC.
Law Points
- Order 18 Rule 2 CPC
- burden of proof
- onus of evidence
- partition suit
- gift deed
- co-defendants
- exceptional circumstances
Case Details
2005 LawText (BOM) (09) 88
WRIT PETITION NO.421 OF 1994
Mr. R.K. Daruwalla and Mr. A.N. Mulla for the petitioners; Mr. G.S. Hiranandani i/b Mr. C.G. Gavnekar for respondent no.1
Mohammed Sultan Mohammed Yasin and others
Mohammed Nurani Mohammed and others
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Nature of Litigation
Civil writ petition challenging an interlocutory order in a partition suit.
Remedy Sought
The petitioners sought a direction from the trial court that defendant nos.8 to 11 lead their evidence in preference to all other defendants, including the petitioners.
Filing Reason
The trial court rejected the petitioners' application under Order 18 Rule 2 CPC seeking to shift the burden of leading evidence to co-defendants who supported the plaintiffs.
Previous Decisions
The trial court (Civil Judge, Senior Division, Malegaon) rejected the application by order dated 23.8.1993.
Issues
Whether the trial court was justified in rejecting the application of defendant nos.1 to 7 (petitioners) seeking a direction to defendant nos.8 to 11 to lead evidence in preference to all other defendants under Order 18 Rule 2 CPC.
Submissions/Arguments
Petitioners argued that since defendant nos.8 to 11 supported the plaintiffs' case, they should lead evidence first.
Respondent no.1 (plaintiff) opposed the application, and the trial court rejected it.
Ratio Decidendi
The burden of proof lies on the party who would fail if no evidence is led. In a partition suit, the party claiming under a gift deed must prove its validity. There were no exceptional circumstances to direct co-defendants who supported the plaintiffs to lead evidence before the petitioners.
Judgment Excerpts
This petition is directed against the judgment and order dated 23.8.1993 passed by the Civil Judge, Senior Division, Malegaon on the application filed by the petitioners, who are original defendant nos.1 to 7, under Order 18 Rule 2 of the Code of Civil Procedure by which the prayer of the petitioners seeking direction to defendant nos.8 to 11 to produce their evidence in preference to all other defendants including the petitioners has been rejected.
The burden of proof lies on the party who would fail if no evidence is led.
Procedural History
The petitioners filed an application under Order 18 Rule 2 CPC in a pending partition suit before the Civil Judge, Senior Division, Malegaon. The trial court rejected the application on 23.8.1993. The petitioners challenged this order by filing Writ Petition No.421 of 1994 in the Bombay High Court, which was dismissed on 1.9.2005.
Acts & Sections
- Code of Civil Procedure, 1908: Order 18 Rule 2
