{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.864 OF 2009 Sau Mangala Ravindrasing Patil PETITIONER VERSUS Chandrakant Ramchandra Mahajan RESPONDENT ....... Mr.P.R.Patil, Advocate for the petitioner Mr.M.M.Bhokarikar, Advocate for the respondent ....... [CORAM : A.V.POTDAR, J.] DATE : 5th August 2009 PER COURT: 1. By the present petition, the petitioner, original defendant in Special Civil Suit No.310/2004, on the file of Civil Judge, Senior Division, Jalgaon, has challenged the order dated 02.12.2009 passed below Exhibit-32. 2. Heard learned counsel for the parties. 3. It appears that the respondent has filed special civil suit No.310/2004 for recovery of Rs.5,37,475/- from the petitioner {2} alleging that the petitioner has purchased drip irrigation set worth Rs.4,51,400/- on 24.10.2001 for which consideration was paid by cheque drawn on Dena Bank, Navi Peth Branch, Jalgaon dated 17.03.2003 and when the same was deposited it was bounced and returned with a memo “insufficient funds”. A criminal case was also filed in the Court of Chief Judicial Magistrate u/s 138 of the Negotiable Instruments Act and simultaneously special civil suit is filed for recovery of the said amount. The petitioner has filed written statement contending that her cheque book was stolen way back in the year 2000 and she has not purchased any goods or articles from the respondent. It is also contended that taking disadvantage of the relations with the husband of the petitioner, a false suit is filed for recovery of amount. It further appears that after completion of the pleadings issues are framed and settled by the trial court and the parties were directed to lead evidence. Accordingly, respondent has filed affidavit of his evidence under Order 18 Rule 4 of the Civil Procedure Code at Exhibit-27. After receipt of the copy of the said affidavit, it appears that, the petitioner has filed an application at Exhibit-32 calling upon the respondent to produce 6 documents mentioned / enlisted in the said application. After hearing both the sides, learned trial court has rejected the application vide order dated 02.12.2008, which is impugned in this petition. 4. During the course of submissions it is vehemently contended by learned counsel for the petitioner that order of the {3} trial court while rejecting the application is not happily worded. He has contended that the documents, which the petitioner has sought, are in the custody of the respondent and he is having exclusive domain over same. Secondly, unless the documents are produced it would be difficult for the petitioner to establish her defense. 5. Per contra, learned counsel for respondent has vehemently opposed these submissions and has urged that the respondent is able to take care of his proceedings. 6. It is necessary to consider that it is a settled principle of law that the initial burden to prove the facts pleaded lies on the party who has avered the same. After the entire evidence is over, the onus / burden shifts on the other side. Lastly, the court, before whom the proceedings are initiated, has to access the probative value of the evidence in the light of entire evidence on record. 7. Considering the facts pleaded by the plaintiff before the trial court, it is the duty of the plaintiff to tender the documents in support of his claim. If the plaintiff is successful in establishing the claim, then the rebuttal burden would shift on the defendant, petitioner to disprove the same. At this stage, admittedly, the proceedings are pending before the trial court for cross examination of the plaintiff and the affidavit of evidence is tendered by the plaintiff and his cross is yet to begin. In absence of {4} cross examination, it cannot be decided that the plaintiff has established the burden on him, In the premise, the impugned order though not happily worded yet cannot be faulted with. 8. In substance, the writ petition is devoid of any merit and hence requires no interference at the hands of this Court at this juncture. However, after the evidence of plaintiff would be over and then if the petitioner feels that he requires certain documents to be called for, then in law he would be entitled to take summons to that effect. With this clarification, the writ petition is dismissed with no order as to costs. It is clarified that the petitioner is at liberty to call for the original bill book of which the invoice is tendered in the evidence during the cross of the plaintiff. [A.V.POTDAR, J.] drp/wp864-09