1 WP 5972.2011- [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5972 OF 2011 1. M/s Rajmal Lakhichand Firm A Partnership Firm carrying on business at 169, Jwahari Bazar, Jalgaon. 2. Ishwarlal Shankarlal Jain (Lalwani), Age : 66 Yrs., Occ. Trade, R/o : 169, Jwahari Bazar, Jalgaon. 3. Mrs. Nitika W/o Manish Jain (Lalwani), Age : 38 Yrs., Occ. Trade, R/o : 169, Jwahari Bazar, Jalgaon. 4. Amrish Ishwarlal Jain (Lalwani), Age : 40 Yrs., Occ. Trade, R/o : 169, Jwahari Bazar, Jalgaon. .... PETITIONERS V E R S U S Bhikchand Vithaldas Saraswat Deceased through his L.Rs. 1. Sunya Bhikchand Saraswar Age : Major, R/o : 20, ‘ Mamta ’, Radhakishan Wadi, Zilla Peth, Jalgaon. 2. Sujay Bhikchand Saraswar Age : Major, R/o : 20, ‘ Mamta ’, Radhakishan Wadi, 2 WP 5972.2011- [ J ] Zilla Peth, Jalgaon. 3. Sushilchandra Bhikchand Saraswar Age : Major, R/o : 20, ‘ Mamta ’, Radhakishan Wadi, Zilla Peth, Jalgaon. .... RESPONDENTS Mr. P.M.Shah, Sr. Counsel instructed by Mr. S.P.Shah, Advocate for the petitioners. Mr. A.M.Gholap, Advocate for Resp. Nos. 1 to 3. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 22/09/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The present petitioners are the original defendant nos. 1 to 4. The present respondents are the original plaintiffs, who have filed Suit for recovery. The trial Court framed the issues. Thereafter, two ( 2 ) applications were filed, one for consolidation of the Suit and another by the plaintiff pursuant to Order XVIII Rule 3 of the Code of Civil Procedure [ For short, ‘ the Code ’ ]. The trial Court allowed the applications. Aggrieved thereby, the present Writ Petition is filed. 3. The present Writ Petition is limited to the extent of the 3 WP 5972.2011- [ J ] order passed on an application moved by the plaintiff under Order XVIII Rule 3 of the Code ( Exh. 84 ). 4. Mr. P.M.Shah, the learned Sr. Counsel submits that the order which is passed is not in tune with the provisions of Order XVIII Rule 3 of the Code. The said order has permitted the plaintiff to lead his entire evidence subsequently and it does not state that the plaintiff has to lead the evidence first in respect of the issues, of which burden is cast on him. The learned Sr. counsel contends that the issues which are framed are not appropriately worded. Issue Nos. 2 and 3 does not clarify as to on whom the burden has been cast. 5. Mr. Gholap, the learned counsel for the respondent/plaintiff submits that the order is passed pursuant to the application Exh. 84. In the said application, the plaintiff had made it clear that it is only in respect of the issues of which the burden is cast on the defendant, the plaintiff is reserving the right of rebuttal. The plaintiff would lead the evidence first in respect of the issues of which the burden has been cast upon the plaintiff. 6. In light of the above submissions, in fact, no controversy remains. The plaintiff shall adduce evidence first in respect of the issues of which the burden is cast upon the plaintiff reserving his right of rebuttal in respect of the issues of which burden is cast upon the 4 WP 5972.2011- [ J ] defendant and after the defendant leads the entire evidence, the plaintiff can adduce evidence to the extent of the issues of which the burden was cast upon the defendant. 7. Regarding the submission of the learned Sr. Counsel that the issue nos. 2 and 3 does not show as to on whom the burden is cast, the petitioner can move an appropriate application to the trial court in that regard, which the trial court would consider on its own merits. 8. The Writ Petition is accordingly disposed of. 9. Rule is made absolute in terms of above observations and directions. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 5972.2011- [ J ]