(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Writ Petition No. 5225 of 2008 1. Prakash s/o. Narsing Biradar, Age : 55 years, Occupation : Agriculture, R/o. Shelgi, Taluka : Nilanga, District : Latur. 2. Dilip s/o. Narsing Biradar, Age : 40 years, .. Petitioners Occupation : Agriculture, (Original R/o. Shelgi, Taluka : Nilanga, defendant District : Latur. nos.1 and 2) versus 1. Sunderabai w/o. Gunderao Kale, Age : 70 years, Occupation : Agriculture, R/o. Ghotal, Taluka : Basavkalyan, District : Bidar (Karnataka). 2. Waman s/o. Kundalik Biradar, Age : 60 years, Occupation : Agriculture, R/o. Shelgi, Taluka : Nilanga, District : Latur. 3. Madhukar s/o. Kisan Biradar, Age : 30 years, Occupation : Agriculture, R/o. Shelgi, Taluka : Nilanga, District : Latur. (2) 4. Vasant s/o. Tatyarao Biradar, .. Respondents Age : 25 years, (No.1 -Original Occupation : Agriculture, plaintiff, R/o. Shelgi, Taluka : Nilanga, Nos.2 to 4 - District : Latur. Original defendant nos.3 to 5) .................. Mrs. M.A. Kulkarni, Advocate, for the petitioners. Mr. Parikshit P. Dawalkar, Advocate, holding for Mr. S.P. Deshmukh, Advocate, for respondent no.1. Respondent nos.2 to 4 served (Absent). .................. CORAM : B.R. GAVAI, J. DATE : 22ND JUNE 2009. COURT’S ORDER : 1. Rule. Rule made returnable forthwith. Heard by consent. 2. None for respondent nos.2 to 4, though duly served with notice for final disposal of the matter at admission stage. 3. By way of present petition, the petitioner challenges the order dated 7th July 2008, below Exhibit 41 in Regular Civil Suit No. 271/2005, thereby allowing the application filed by respondent no.1 and directing the defendants to lead evidence first on issue Nos.3 and 5 as per Order XVIII Rule 3 of the Code of Civil Procedure, 1908. (3) 4. The respondent plaintiff has filed a suit for declaration of ownership and possession. The suit is resisted by the petitioners defendants by filing written statement. The defendants have denied the claim of the respondent plaintiff and have also submitted that the suit was bad in law for non-joinder of necessary parties and that the judgment and decree passed in Regular Civil Suit No. 93/2002 operates as res judicata. Accordingly, the trial court has framed seven issues. In the said proceedings, an application came to be filed by the respondent plaintiff for directing the defendants to lead the evidence first on issue Nos. 3 and 5. The said application is rejected. Hence, the present petition. 5. The learned Single Judge of this court, in the case of Gouri Food Products Vs. Priya Trading Company (2002(6) Bom.C.R. 218), and in the case of Haran Bidi Suppliers & another Vs. V.M. & Company, through Ambubhai s/o. Jivrajbhai Seth (2001(2) Bom.C.R. 209), has held that Order XVIII Rule 1 of the Code of Civil Procedure, 1908, does not permit the court to direct the defendant to lead evidence prior to the evidence of the plaintiff. 6. In so far as the reliance placed by the trial court, on the provisions of Order XVIII Rule 3 of the Code of Civil Procedure, 1908, is concerned, I find that the reliance placed by the trial court is totally misplaced. 7. In that view of the matter, the impugned order is not sustainable in law and is liable to be quashed and set aside. (4) 8. In the result, the petition is allowed. Rule is made absolute in terms of prayer clause "C". In the circumstances of the case, parties shall bear their own costs. ( B.R. GAVAI ) JUDGE ...................... bgp/wp5225