1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.7778 OF 2010 Arefa w/o Mohd Anwar Age: 55 yrs., Occ: Household R/at: Plot No.89, S.N.224, Guruwar Ward, Malegaon ...Petitioner. v. 1 Alia Yasmin w/o Tufel Ahmed Age: 45 yrs., Occ: Household, R/at: Mangalwar ward, Kasaiwada, in front of Masjid, Malegaon, Dist: Nashik 2 Mr. Maood Ahmed Mohd. Usman Age; Adult, Occ: None R/o: 392 Mangalwar Ward, Malegaon, Dist. Nashik 3 Shabina Nahid Mard Iqbal Age: Adult, Occ: Household, R/o: Ansar Road, Near Akhada Masjid Malegaon, Islampura 4 Jarina Shahnaj Mohd Usman Age: Adult, Occ: Household, 5 Massoma Mohd Usman Age: Adult, Occ: Household 6 Hasmina Khanam Mohd Usman Age: Adult, Occ; Household, 4,5,6 residing at 392, Mangalwar Ward, Malegaon, Dist. Nashik 2 7 Najmulhuda Shamsudoha Shaikh Since deceased through legal heirs 7a. Jaibunissa Mard Najmulhuda 7b. Naima d/o Najmulhuda 7c. Nasara d/o Najmulhuda 7d. Nazia d/o Najmulhuda 7a to 7d residing 398, Mangalwar ward, Malegaon, Dist. Nashik 8 Ainulhuda Shamsudoha Shaikh Age; Adult, Occ: business, 9 Jiyaulhuda Shamsudoha Shaikh Age: Adult, Occ: Business, Both R/at: 8,9,Mohd Ali Road, Malegaon, Dist. Nashik 10 Anwarulhuda Shamsudoha Shaikh Since deceased through his legal heirs 10a Shakila Mard Anwarulhuda Age: Adult, Occ; Household, 10b Mohd. Tausif Anwarulhuda 10c Mohd Taukir Anwarulhuda 10a to 10c residing at 398, Mangalwar Ward, Malegaon, Dist. Nashik 10a to 10c residing at 398, Mangalwar ward, Malegaon, Dist. Nashik 11 Malegaon Municipal School Board Malegaon, Ravivar Ward, Malegaon, Dist. Nashik 12 Kureshabano Mard Mohd Mustafa Age: Adult, Occ: Household, 13 Nazmussaher Mohd Mustafa Age: Adult, Dist. Nashik 3 14 Muzeeb Ahmed Mohd Mustafa Age: Adult, Occ: Business 15 Salma Firdos Mohd Mustafa Age: Adult, Occ: Household 16 Seema Firdos Mohd Mustafa Age: Adult, Occ: Household 17 Muneeb Ahmed Mohd. Mustafa Age: Adult, Occ: Household, Res.12 to 17 residing at House No.392, Mohd. Ali Road, Malegaon, Dist. Nashik ...Respondents. Mr. N.R.Bubna and Ms Manisha Salekar, advs., for the petitioner. Mr. Anilkumar Patil, adv. for the respondent nos.1 to 6. CORAM : J.H.Bhatia, J. DATE : 15th October, 2010 ORAL JUDGMENT: 1 Rule. Rule made returnable forthwith. Heard the learned counsel for the parties. 2 The Petitioner had previously filed Special Civil Suit No. 299 of 1990 for declaration of her title over the suit property and also for declaration that the defendant nos.1 to 6 therein had no right, title or interest in the suit property and that the sale deed executed by the defendant nos.1 to 6 in favour of the defendant nos.7 to 10 on 24.9.82 4 was void ab-initio and not binding on the plaintiff. That suit was disposed off as withdrawn on 25th October, 1993. Thereafter, the plaintiff/petitioner filed Regular Civil Suit No.284 of 1995 seeking declaration that earlier Special Civil Suit No.299 of 1990 was withdrawn by somebody by impersonating as the plaintiff and thus, by playing a fraud upon and misleading the Court and also for declaration that Special Civil Suit No.299 of 1990 be treated as pending in the Court. Some other consequential reliefs were also sought. Defendants contested the suit by filing written statement. It is contended that the on the date and at the time of withdrawal of the suit, plaintiff was present in the Court. Defendants had paid some cash and had also transferred some landed property in favour of the plaintiff as per the terms of the compromise between the parties and as a result of that compromise, the suit was withdrawn by the plaintiff. 3 Suit is pending since 1995. Issues were cast, recast and again recast several times. Evidence was also led by the parties. On 2.4.2010, the learned Civil Judge Senior Division, Malegaon recast the issues as follows: “1 Does plaintiff prove that the Spl. Civil Suit No.299/90 was caused to be withdrawn by playing fraud and mis-representation 5 upon the Court ? 2 Does plaintiff prove that she is entitled to the relief of declaration as prayed in prayer clause (c) ? 3 Is the plaintiff entitled to the relief of injunction as prayed for ? 4 Are the defendants entitled to the compensatory costs ? 5 What order and decree ?” Thereafter, plaintiff moved an application Ex.292 for framing additional issues on the ground that in view of the specific pleadings of the defendants about the circumstances in which the suit was withdrawn and that the plaintiff was infact present before the Court at the time of withdrawal of the suit, some issues should have been framed putting burden of proof upon the defendants. Plaintiff proposed three additional issues. The trial Court after hearing the parties, passed the impugned order dated 19.7.2000 and rejected the said application. 4 On perusal of the pleadings, the issues recast on 27.4.2010 and the issues proposed to be added in the application, Ex. 292, I find that proposed issue no.1 is not necessary. However, 6 proposed issues nos.2 and 3, which are as follows, need to be considered: “2 Do defendant nos.1 to 6 prove that they have paid cash amount and transferred landed property to the plaintiff in term of compromise ? 3 Do defendant nos.1 to 6 prove that at the time of the withdrawal of SCS No.299/90 the plaintiff was present before the Court, and with her free will and consent the suit has been withdrawn ? 5 Order 14 Rule 3 provides that Court may frame issues from all or any of the following materials:- (a) allegations made on oath by the parties, or by any persons present on their behalf, or made by he pleaders of such parties; (b) allegations made in the pleadings or in answers to interrogatories delivered in the suit; (c) the contents of documents produced by either party. Rule 5 provides that the Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit. While framing the issues under Order 14, the Court has also to keep in mind the provisions of Chapter 7 of the Indian Evidence Act, 7 which provides about the burden of proof. Under Section 101, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Section 102 provides that the burden of proof in a suit or proceeding lies on that person, who would fail if no evidence at all were given on either side. In view of provisions of 101 and 102, naturally basic burden would lie on the plaintiff to prove that she had not withdrawn earlier suit and that somebody had impersonated her and played fraud on the Court while withdrawing the suit. If she does not lead any evidence, she may fail in getting decree in her favour. However, Section 103 provides that burden of proof as to any particular fact lies on that person, who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Section 106 provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 6 In the present case, defendant nos.1 to 6 specifically pleaded that the plaintiff was infact person before the Court. She had received certain amounts and also certain property from the defendants and as per the terms of the compromise, she had 8 withdrawn the suit. These facts are specifically pleaded by the defendants and these facts are also within their knowledge, therefore, burden of proving such facts would be on the defendants. In view of the provisions of Sections 103 and 106 of the Evidence Act and in view of the given facts and pleadings of the defendants, the burden will be on the defendants to prove that the plaintiff was infact present before the Court and as per the terms of the compromise, she had withdrawn the suit. If issues framed on 27.4.2010 are carefully perused, it appears that no issue was framed by the Court putting specific burden on the defendants to prove these facts, therefore, it was necessary to add some issues in that respect. The learned counsel for the defendant/respondents contends that burden could not be only on defendant nos.1 to 6 but it could be on all the defendants because the property was transferred and alleged payment was made by the defendant nos.7 to 10. In view of this, I find that issues to that effect must be added. 7 Therefore, petition is allowed in following terms: Following two issues be added as issue nos.2 and 3. “2: Do the defendant nos.1 to 10 prove that in view of the payment of cash and transfer of certain landed property in favour of the 9 plaintiff , she had agreed to withdraw the suit ? 3: Do the defendant nos.1 to 10 prove that the plaintiff was present before the Court and with her free will and consent, she had withdrawn S.C.Suit No.299 of 1990. Existing issue nos.3 to 5 shall be re-numbered as issue nos.4 to 7. The trial Court shall expedite the suit and dispose off the same as early as possible and preferably by the end of April, 2011. In view of the addition of issues, the parties shall be given opportunity to lead further evidence if they so desire or to recall any witness for examination or cross-examination. Rule made absolute accordingly. (J.H.BHATIA, J.) 10