Case Note & Summary
The petitioners, original defendant nos.1, 2, and 3 in Regular Civil Suit No.273/2013, challenged the order dated 15.10.2018 passed by the Civil Judge Senior Division, Parner, District Ahmednagar, which rejected their application (Exhibit 80) seeking a direction that the defendants be allowed to begin the evidence. The suit was filed by respondent no.1 (original plaintiff) for partition and separate possession. Initially, issues were framed on 25.09.2018, and the trial court directed the plaintiff to begin the evidence. However, on 15.10.2018, the issues were recast, and the defendants filed Exhibit 80 contending that after recasting, the burden of proof lay on them, and thus they should be allowed to begin. The trial court rejected the application, holding that the earlier order directing the plaintiff to begin was final and could not be reopened. The High Court examined Order 18 Rule 1 of the Code of Civil Procedure, 1908, which provides that the court has discretion to determine which party shall begin. The court noted that the earlier order was passed without hearing the defendants and that the recasting of issues altered the burden of proof. The High Court held that the trial court's refusal to reconsider was erroneous as the order was not final and could be revised in changed circumstances. The impugned order was set aside, and the trial court was directed to hear the application afresh and decide it in accordance with law, considering the recast issues and the burden of proof. The writ petition was allowed with no order as to costs.
Headnote
A) Civil Procedure - Right to Begin - Order 18 Rule 1 CPC - Recasting of Issues - The trial court initially directed the plaintiff to begin evidence, but after recasting issues, the burden shifted to the defendants. The court held that the earlier order could be reconsidered as it was passed without hearing the defendants and the recasting of issues changed the burden of proof. (Paras 4-6) B) Civil Procedure - Revision of Interlocutory Orders - Order 18 Rule 1 CPC - The court held that an order under Order 18 Rule 1 is not final and can be revised if circumstances change or if it was passed without affording an opportunity to the other side. The trial court's refusal to reconsider was erroneous. (Paras 7-8) C) Civil Procedure - Burden of Proof - Recasting of Issues - When issues are recast, the burden of proof may shift, and the court must determine which party has the right to begin based on the pleadings and the burden of proof. (Para 5)
Issue of Consideration
Whether the trial court's order directing the plaintiff to begin the evidence under Order 18 Rule 1 CPC, passed after recasting of issues, is liable to be set aside when the defendants claim that the burden of proof lies on them.
Final Decision
The writ petition is allowed. The impugned order dated 15.10.2018 is set aside. The trial court is directed to hear the application Exhibit 80 afresh and decide it in accordance with law, considering the recast issues and the burden of proof. Rule is made absolute in those terms. No order as to costs.
Law Points
- Order 18 Rule 1 CPC
- right to begin
- recasting of issues
- burden of proof
- revision of procedural orders
- natural justice
