WP. 5031-00 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 5031 OF 2000 Hulaschand Sampatlal Dassani ...Applicant Vs. Fredoon M. Dalal & Ors. ...Respondents *** Mr. P. S. Dani, for the Petitioner. Mr. Milind Sathe with Zarir B. Mogal, for Respondent Nos. 2, 3, 5 & 6. Mr. Pratap H. Toprani, for Respondent Nos. 8A to 8G. *** CORAM: V. M. KANADE J. DATE : MAY 3, 2011 P.C. 1. Heard the learned counsel appearing for the petitioner, respondent Nos. 2, 3, 5 & 6, and respondent Nos. 8A to 8G. Petitioner is the original defendant No.3. Respondent Nos. 2, 3, 5 & 6 are the original plaintiffs. Respondent No.1 is original plaintiff No.2. Respondent No. 7 has expired and the Writ Petition stands abated as against him, in view of the order passed on 1st August, 2002. Respondent No. 8 is original WP. 5031-00 - 2 - defendant No.2 and his legal heirs are brought on record. For the sake of convenience, parties shall be referred to as the Plaintiffs and defendants. 2. Plaintiffs filed the suit against the defendants on varous grounds. In the said suit, the issues are framed and defendant No.3 petitioner herein claimed to be a sub-tenant of defendant No.2. An application was made by the second defendant that defendant No.3 may be directed to lead his evidence first since the issue was framed which casts burden on defendant No.3 to prove is case. Said application was allowed by the trial Court by an order dated 18th August, 2000. Being aggrieved by the said order, defendant No.3 filed this writ petition. The writ petition was admitted on 4-10-2000 and an ad-interim relief was granted in terms of prayer Clause (c). As a result of the said interim order, hearing of the said suit is stayed till today. Mr. Dani, learned counsel appearing for the petitioner submitted that the trial Court could not have given a direction to lead the evidence first. It is submitted that such a direction could not be given by the Court. Reliance is also placed on the provisions of O. 18, Rule 3 of the C. P. C. and it is submitted that the impugned order was, therefore, liable to be set aside. 3. Reliance is placed on two judgments of this Court in the WP. 5031-00 - 3 - case of – (i) Parvez Shah Shah, Petitioner vs. State of Maharashtra & Ors. [2001(2) Bom.C.R.208]; and another judgment of learned Single Judge (ii) Bhagirath Shankar Somani & Anr, Petitioner vs. Rameshchandra Daulal Soni & Anr. [2007(4) ALL MR 514]. The learned counsel appearing for original defenant No.2 has filed his written submission. 4. In my view, the submissions made by the learned counsel for the petitioener cannot be accepted. It is an admitted position that in view of issue No. 3A, burden is cast on defendant No.3 to prove his occupation of the suit premises exclusively on the appointed date i.e. 1-2-1973. That being the position, the trial Court was justified in directing defendnat No.3 to lead evidence first. The judgment on which reliance is placed by the learned counsel for the petitioner will not apply to the facts of the present case. The said judgments are in respect of cases where the impugned order was passed either in respect of plaintiff or defendant and not inter se between two defendants. In any events, this order being an interlocutory order, it will not be possible to interfer with the said order while exercising the jurisdiction of this Court under Art. 227 of the Constitutionn. Hence, Writ Petition is dismissed. WP. 5031-00 - 4 - 5. The hearing of the suit is expedited. The trial Court is directed to decide the suit as expeditiously as possible and in any case within a period of six months, taking into consideration the fact that suit is of 1992. [ V. M. KANADE J.]