( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6140 OF 2010 Mrs. Shamimbanu w/o. Abdul Rahim .. Petitioner Versus Afzalkhan s/o. Itbarkhan & Anr. .. Respondents Mr. N.E. Deshmukh, Advocate for the petitioner. CORAM : V.R. KINGAONKAR, J. DATED : 16.08.2010 P.C. :- 1. Heard Counsel. The petition is directed against order dated 17th February, 2009, rendered on Application (Exh. 29) filed in suit bearing Regular Civil Suit No. 139 of 2002. 2. The petitioner is original plaintiff. She has filed a suit for specific performance of agreement of sale dated 14.07.1999. She asserted that the defendants have agreed to alienate house property in question in her favour for consideration of Rs. 1 lakh and out of that an amount Rs. 25,000/- (Rupees Twenty Five Thousand Only) was paid by way ( 2 ) of earnest money. The respondents/defendants alleged that the agreement of sale styled as “Saude Pavati” dated 14th July, 1999 was subsequently cancelled by the parties by way of separate agreement dated 29th December, 1999 and that earnest money was refunded to the petitioner/plaintiff. 3. The petitioner submitted application (Exh. 29) for direction that the defendants shall be called upon to lead evidence regarding cancellation of the “Saude Pavati” and refund of money, because there was implied admission regarding execution of “Saude Pavati” relied upon by her. The petitioner is required to prove the first three issues settled below Exh. 28. Assuming that there is plea about cancellation of “Saude Pavati”, then also, it does not mean that right to begin can be otherwise altered by giving such direction to the defendants/respondents. The litmus test is to see as to who will fail if no evidence is adduced. Right to begin under Order 18 Rule 1 of C.P.C. must be read along with provisions of Section 101 and 102 of the Evidence Act. So, if such direction is given by the Court and defendants will fail to adduce any evidence, is it possible that the suit can be automatically decreed, though neither of the ( 3 ) parties has adduced evidence, is the question that has to be determined. Admittedly, this cannot be done in the present case because in such case also the petitioner will be required to prove due compliance of Section 16 (c) of the Specific Relief Act by proving that she was all along willing throughout relevant period to comply her part of the agreement. 4. In this view of the matter, the impugned order, whereby the application has been rejected cannot be faulted with. No substance in the petition. The petition is dismissed. [V.R. KINGAONKAR,J.] snk/2010/AUG10/wp6140.10