;^';^ OF CHHATTISGARH AT BILASPUR Plajntlffs Ravindra Kumar Chatterjee and another Versus ResRondents : Defendants Smt. Ranu Ganguly and others .^ PQST FOR ORDER ON ^ JULY. 2010 Sd/- Dhirendra Mishar Judge ^is"'%tefe ^^s^^' ..f' • HIGH COURT OF CHHATT1SGARH AT BSLASPUR S.B. HON'BLE SHRI DHiRENDRA IVSSSHRA.^J Writ Petition (2271 No.2257 of 2010 PetitiQners 1. Ravindra Kumar Chatterjee, son of late Shri Adhir Plaintiffs Kumar Chatterjee, aged about 64 years, Caste ~ Brahmin, Occupation - Ser/ice, resident of Rajnandgaon (Chhattisgarh) 2. Sapan Kumar Chatterjee, s/o Late Adhir Kumar Chatterjee, aged about 60 years, Occupation - Service, at present residing at - Chhindwara Ve_rsys Res0ondents 1. Defendants Smt. Ranu Ganguiy, w/o M.S. Ganguii, aged about 60 years, Caste Brahmin, presently residing at oid Daga Buiiding, Near GNT, Hlgh School, Raipur (Chhattisgarh) 2. Smt. Dofly Rani Chatterjee, w/o late Samir Kumar Chatterjee, aged about 64 years, Caste Brahmin, presently residing at Amrapaii Coiony, Quarter No.2, infront of MM! Hospitat, Main Road, Raipur (Chhattisgarh) 3. Vijay Lal S/o Aagyaram, aged about 63 years, Businessman, R/o Rojgaripara, Jaistambh, Kondagaon, District Bastar (Chhattisgarh) Present: Shri Sanjay K. Agrawal with Shri Sourabh Sharma, counsel for the petitioners. Shri Goutam Khetrapai, counsei for respondent No.1. Shri PrafulE Bharat, counsei for respondent No.3. ORDER (Passedon ^AjuSy,2010) The instant petitlon has been preferred by the Detitioners/DJaintiffs as their apptication under Order XVJSI Rule 1 of the Code of Civii Procedure (in short "the Code") for directing the respondents/defendants to begin evidence has been rejected. (Parties hereinafter shaii be referred to as per their description before the trial Court.) 02. The plaintiffs filed a suit forcanceJlation of sate deed and recovery of possession against the defendants and also pleaded that the suit property is a joint family properiy and the same has been sold without any legal necessity by the defendants. The defendants, in their written statement, averred that the property in question is a self-acquired property of Sudhir Kumar Chatterjee. •\.^~^".> &.. ^ "" i^;>/ ?^K 3. 03. On the basjs.of pleadings of the respective parties, various Issues were framed, amongst them issue No.1 is - whether the suit property Is a jointfamjiy property ofthe pi'aintjffs and the defendents? 04, Tlie plajntiffs moved an application under Order XySti Rule 1 of the and prayed for direction to the defendants to begin evidence as cn the basis of defendants* pleadings that the property-in questlon is the seif- acqulred property of Sudhir Kumar Chatterjee, issue No.1 has been framed and thus, burden of proving the above issue is on the defendants. 05. Learned counsei for the petitloners/ptaintiffs, reiying upon the decisjon of the M.P. High Court in the matter of Jagrsn (Smt) and others Vs. Smt Bal reported in 2002 (1) JLJ 236, argued that since the defendants have controverted the pleadings in the plaint by a positive p!eading that the suit property is the seff-acquired property of Sudhir Kumar Chatterjee and if they are successfui in discharging their onus, the plalntiffs' suit is bound to meet with failure, the onus of proving Issue No.1 lies on the defendants and therefore, the fearned tria! Court ought to have directed the defendants to evidence first. 06. On the other hand, jearned counsel for the responclents, submitted that the relief clalmed by the plalntiffs in the suit is for canceijation of the and return of suit Eand, whereas in the j'udgment, the pjaintiffs fjied a suit for accounts and possession of half portion of the suit propeily with the averment that the suit property is a joint Hindu family property and thus, the Gited judgment has no application to the facts ofthe present case. Reiying upon the declsion of the Bombay Hlgh Court in the matters of l^s. ancf reporteo' In 1007 (4) AIR R 376 : AIR 2Q07 (NOC) jt under the scheme of Order XVII! Rule 1, the Court has no power to compei the to first. The Rule is an enaS3lIng rule and therefore, in of contingencjes, rnentloned in the Ruie, the can hls to evldence prior to piaintiff. 07. Heard !earne(J counsej for the partles and perused the impugned orde-r. 08. The piaintiTfs have pleaded in the plaint that the property in question was purchased and house was constructed over it by their father and Sudhir Kumar Chatterjee through their earnlngs in the year 1952 and the same was mutated sn the name of Sudhlr Kumar Chatterjee as he was eldest in the 3 famiiy. Whereas the defendants have pleaded that the property in question is the seif-acquired property of Sudhir Kumar Chatterjee. 09. The triai Court, considering the pleadings in the plaint and the written statement, has obsen/ed that the initial burden of proving that the property in question is a joint family property, is on the plaintiffs as pleaded in the plaint and thus, the piaintiffs have to first prove thelr case. 10. !n the matters of Shankar SomBni (supra), the Bombay High Court referring to the decision of the same High Court in case of Gouri Food Pmducts, Nagpur Vs. Priya Trading Company, Nagpur, {2002 (4) Law Joumal, 8801}, he!d that a directlon agalnst the defendant to evldence before the pSaintJff Jeads his evjdence, cannot be issued under Ruis (1) of Order XVIil ofthe Code. The scheme of Ru!e 1 appears to be that as a norma! rule, it is the privilege ofthe piaintiffto !ead his evidence first. However, it enables the defendant to exercise the right in the contingency mentioned In the ru!e. TIie plaintiff in a given case can make a statement before the triai Court stating that as the case is covered by exception In Rule 1 of Order XV!!! of the Code, he is reserving his right to iead evidence in rebuttai after the defendant leads his evidence. 11. However, without expressing any opinion with respect to the law lald down bythe Bombay High Court in the cited decision, 1 am ofthe opinion that In the of the present case. the iaw laid down by the M.P. High Court in the matter of Jagran (Smt) (supra) has no application. 12. After considering the pieadings and relief claimed in the pjaint and pieadings in the written statement, 1 am of the opinion that the triai Court has rightiy heid that the InitiaE burden to prove its !ies on the piaintiff. There Is no iiiegafity, infirmity or jurisdictional error committed by the tria! Court whiie rejectlng the plaintiffs' appiication under Order XVII! Rule 1 of the Code, resulting in manifest injustice or prejudice iikeiy to be caused to the parties. The petitlon is without any substance; the same desen/es to be and is, accordingly, dismissed at the admisslon itself. ~ Sd/- Dhirendra Mishar Judge ^l