1 ao495.11.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. Appeal from Order No. 495 of 2011 IN Notice of Motion No. 535 of 2011 IN Special Civil Suit No. 7732 of 1988 Maneksha Jijina & anr. ....Appellants v/s. Dady kaikhroshroo Banaji & ors. ....Respondents Ms. Sunita Potdar i/b. Thakordas & Madgavkar for the appellants. Mr. P.M. Rustom Khan for respondents 1, 3, 2(A) and 3(B). CORAM: R.M. BORDE, J. 23rd November, 2011 PC: The Notice of Motion tendered by the plaintiff requesting the Court to direct the plaintiff to lead evidence to prove the issue no.4 as the burden of proof lies on the plaintiff, is rejected by the trial Court. It is further directed in Paragraph 8 of the order that the suit pertains to the year 1988 and the parties are directed to lead evidence first and at earliest. It is clear from the order passed by the trial Court that none of the parties are directed to lead the evidence by the Court. The issue in respect of leading evidence by the parties is governed by Order XVIII Rule 1 and 3 of the Code of Civil Procedure. Order XVIII Rule 1 and 3 reads thus:- “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 is not entitled to any part of 2 ao495.11.sxw the relief which he seeks, in which case the defendant has the right to begin. 3. Evidence where several issues.----Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.” 2. In view of the Judgment delivered by this Court in the matter of Haran Bidi Suppliers & anr. v/s. V.M. Co., through Amubhai s/o Jivrajbhai Seth 2001 (2) Bom. C.R. 209. The Court has ruled that the trial Court is not competent to direct the defendants to enter the witness box before the plaintiff and lead evidence in support of his case. In the circumstances, where burden of proving certain issues shifts on defendants, the situation is governed by Rule 3 of Order XVIII. Rule 3 of Order XVIII is considered by this Court in the matter of Bhagirath Shankar Somani & anr. v/s. Rameshchandra Daulal Soni & anr. 2007 (4) Bom. C.R. 87 and it is observed in para 12 of the Judgment as below:- “ Rule 1 recognizes that ordinarily it is the plaintiff who has a right to begin by leading his evidence. The only exception is where the defendant admits the facts alleged by the plaintiff and contends that either on point of law or on some additional facts alleged by the defendant that the plaintiff is not entitled to any part of the relief which he seeks. In such a case, the defendant has right to begin. Rule 3, deals with a contingency where burden of proving some of the issues is on the defendant. In such a case Rule 3 gives an option to the plaintiff to produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party. When the plaintiff exercises such option, he can 3 ao495.11.sxw produce the evidence on said issues by way of rebuttal after the defendant has produced all his evidence.” 3. Reference also can be made to the Judgment in the matter of Gouri Food Products Nagrpu vs. Priya Trading Co. Nagpur 2002 (6) BCR page 218, 2002 (4) Mh. L.J. 880. In Paragraph 7 of the Judgment it is observed by the learned Single Judge that: “The plain reading of Rule 1 would show that the plaintiff, undoubtedly, has a right to adduce evidence first in the suit. However, in view of certain contingencies mentioned in Rule 1, the defendant gets right to begin, and is entitled to adduce evidence first in the suit. This is, undoubtedly, an enabling provision entitling the defendant of right to begin. However, nothing in this provision confers any power on the Court under this Rule to direct defendant to adduce evidence first in the suit if the defendant himself has not claimed such right in view of the contingencies mentioned in Rule 1”. 4. Thus, in the instant matter also the Court was justified in not directing either of the parties to began with the evidence first. According to Counsel appearing for the plaintiff the situation is governed by Rule 3 of Order XVIII of the Code of Civil Procedure. In the circumstances, the choice is left with the defendant to lead evidence in respect of any of the issues first. It is also open for the plaintiff to make a suitable request in consonance with provisions of Order XVIII Rule 3 of the CPC. 5. No interference is called for in this Appeal from Order. The same is devoid of substance. Hence, stands dismissed. (R.M.BORDE, J)