1 wp-2665.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. WRIT PETITION NO. 2665 OF 2011 M/s.Metafield Coil Pvt.Ltd. A Company Incorporated under The provisions of Companies Act, 1956, Having its Registered office at: Gut No.179, Village Met, Taluka: Wada, Dist: Thane. ... Petitioner. V/s. M/s.Nikivik Tube Industries Pvt.Ltd. A Company Incorporated under the Provisions of Companies Act, 1956, having its Registered office at : 94, Kansara Chawl, 1st floor, Kalbadevi Road, Mumbai-400 002. Through its Director Shri Sanjay Kiritkumar Vakharia, Age: 40 years, Occ: Business, having offices at 94, Kansara Chawl, 1st floor, Kalbadevi Road, Mumbai-400 002. ... Respondent. R.M.Bhandari for the petitioner. V.G.Ghosalkar for the respondent. CORAM: R.M.BORDE, J. RESERVED ON : 23rd August 2011. PRONOUNCED ON : 22nd September 2011. 2 wp-2665.11 JUDGMENT. : Heard. Rule. With consent of parties, petition is taken up for final disposal at the admission stage. 2. The short point that arises for consideration is whether the trial Court is invested with the powers under order 18 rule 1 of Code of Civil Procedure, 1908 (C.P.C.) to direct the the defendant to begin with the trial by leading evidence on their part. 3. The petitioner/ original defendant is raising exception to the order passed below Exh.77 in Special Civil Suit No.204/2001 decided on 17th August 2009 whereby, the trial Court allowed the application tendered by the plaintiff seeking direction against the defendant to begin with the trial by leading evidence on their part. In Special Civil Suit No.204/2001 instituted by the plaintiff, the following prayers are made: a) It be declared that the Defendants have encroached upon the suit land as shown on the sketch annexed to the Plaint on Gut No.211. b) It be further declared that the work of construction carried out on Gut No.211 and as shown on the sketch annexed to the plaint is absolutely illegal and the Defendants are not entitled to continue with the same. 3 wp-2665.11 c) The Defendants, their servants, agents, or any one claiming through them, be restrained by an order of injunction, from in any manner, in the area as shown in the sketch and marked by letters “A”, “B”, “C”, “D” and “E” and/or carry out any construction thereon. d) The Defendants, their servants, agents, etc. may be ordered and decreed to remove themselves and the structures constructed on the Suit Lands within the area as shown in the sketch and marked by letters “A”, “B”, “C”, “D” and “E”; e) Ad-interim injunction in terms of prayers “c” and “d” above be granted in favour of the Plaintiffs, till the final disposal of the suit; f) Ad-interim, ex-parte relief in terms of prayer “c” and “d” and “e” above be granted in favour of the Plaintiffs; g) Costs of the suit be provided for; h) E.P./S.B. be allowed. i) Any other and further relief/s as this Hon’ble Court may deem fit and proper in the nature and circumstances of the suit, may kindly be granted in favour of the Plaintiffs. 4. The defendant has resisted suit by filing written statement/ cross-objections and has claimed to have entered into an agreement to purchase the property in dispute from the plaintiff. The defendant has denied to have committed any encroachment over the property as alleged by the plaintiff. The defendant also seeks a decree of specific performance of agreement entered into by the defendant- company 4 wp-2665.11 with the plaintiff. The following prayers are made in the cross- objections tendered by the defendant: a. It be declared and decreed that, the Defendants are the lawful owners of the Suit Land, which has been sold and handed over to them by the Plaintiffs for a valuable consideration and has been in their lawful possession; b. The Plaintiffs be ordered and decreed to execute the Sale Deed in respect of the Suit land on favour of the Defendants and register the same with the Sub-Registrar of Assurances; c. The Plaintiffs, their agents, servants, representatives, etc. be restrained by an Order of permanent injunction from disturbing the possession of the Defendants over the Suit Land in any manner whatsoever and be further restrained from entering upon the property of the Defendants and/or obstructing the functioning of their factory; d. Interim injunction in terms of prayer `c’ above be granted in favour of the Defendants; e. Cost of the Counter-Claim be provided for; f. Any other relief, which this Hon’ble Court may deem fit and proper in the nature and circumstances of the case, may kindly be granted in favour of the Defendants. 5. The plaintiff tendered an application at Exh.77 contending therein that the suit presented by the plaintiff is for seeking declaration that the defendant- company has encroached upon 22 Gunthas of land out of Gut No.211. The defendant- company, however, in the written statement/ counter claim presented by them, has alleged that the 5 wp-2665.11 defendant- company has agreed to purchase the suit premises from the plaintiff- company and has prayed for a direction of specific performance of the agreement in their favour. In these circumstances, according to the plaintiff, it is expedient and necessary that the defendant- company be directed to enforce their right to begin with the trial as contemplated under order 18 rules 1 and 2 of C.P.C. The plaintiff, thus, prays to the trial Court to direct the defendant- company to begin with the trial and examine their witness in support of their case first. The trial Court, considering the facts and circumstances of the case, has allowed the application and called upon the defendant to open the trial by leading their evidence. 6. The issue involved in the matter is no more res integra and is covered by the decision rendered by learned single Judge of this Court in the matter of Haran Bidi Suppliers v. V.M. And Company, Bhandara, 2001 (4) Mh.L.J. 113. It is observed in the judgment by the learned single Judge as under: On the plain language of the said provisions, it would appear that it is only an enabling provision entitling the defendant of right to begin. In my view, this provision cannot be interpreted to mean that the Court would be competent to direct the defendant to enter the witness-box before the plaintiff and lead evidence in support of its case. In the circumstances, the impugned order passed by the trial Court cannot be sustained in law. 7. The observations made by the Gujarat High Court in the case of Keshavlal Durlabhasinbhai's firm v. Shri Jalaram Pulse Mills, AIR 1995 Guj 166 are also relevant. The Gujarat High Court has 6 wp-2665.11 opined that the provision is enabling one entitling the defendant of right to begin, however, nothing in the provision confers any power on the Court under this rule to direct the defendant to adduce evidence first in the suit if the defendant himself is not claiming such right in view of the contingencies mentioned in rule 1. 8. Learned Single Judge of this Court in the case of Bhagirth Shankar Somani v. Rameshchandra Daulal Soni, 2007 4 All MR 614, has dealt with the question in detail and observed in paragraph-16 of the order as below: 16. Thus, the consistent view taken by this Court is that a direction against the Defendant to lead evidence before the Plaintiff leads his evidence cannot be issued under sub rule 1 of Order XVIII of the said Code. The scheme of Rule 1 appears to be that as a normal Rule it is the privilege of the Plaintiff to lead his evidence first. However, it enables the Defendant to exercise the right in the contingency mentioned in the Rule. The Plaintiff in a given case can make a statement before the trial Court stating that as the case is covered by exception in Rule 1 of Order XVIII of the said Code, he is reserving his right to lead evidence in rebuttal after the Defendant leads his evidence. The said option can be exercised in mofussil courts by the Plaintiff by filing a pursis to that effect. In a Court in which there is no practice of filing pursis, the Plaintiff can make oral statement to that effect which will be normally recorded in the roznama of the case. After the Plaintiff exercises option it is for the Defendant to decide whether he wants to lead the evidence. If the Defendant decides to lead the evidence, the Plaintiff can always lead evidence in rebuttal. As held by this Court, the Court has no power to issue a direction to the Defendant compelling him to lead his evidence before the 7 wp-2665.11 Plaintiff adduces his evidence. Only when the Defendant claims right to begin under Rule 1 and the Plaintiff disputes existence of such a right, the Court will have to decide the question whether the Defendant has acquired a right to begin. 9. Reliance is placed by the respondent on the judgment of Madras High Court in the case of Mrs.Bama v. Mrs.Rukiyal Bivi, AIR 2004 Mad 243; wherein the Madras High Court has issued direction in the facts and circumstances of the case to the defendant to begin with the case. Firstly, the judgment cited is an order passed by the Madras High Court and is not a judgment. Secondly, in view of the pronouncement of the Bombay High Court, reference to which is made in the above noted paragraph, I do not deem it appropriate to follow the precedent of the Madras High Court. 10. For the reasons recorded above, the order impugned in the petition passed by the Fifth Joint Civil Judge, Senior Division, Thane below Exh.77 in Special Civil Suit No.204/2001 is not sustainable and is liable to be quashed and set aside and the same is, accordingly, quashed and set aside. Rule is made absolute accordingly. No costs. 11. At this stage, counsel appearing for the respondent seeks suspension of the impugned order. Considering the facts and circumstances of the case, oral request made stands rejected. (R.M.BORDE, J.)