1 dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO.7968 OF 2007 -------------------------------------------------------------- Office Notes, Office Memoranda Court’s or Judge’s of Coram, appearances, Court’s Orders orders or directions and Registrar’s orders. ------------------------------------------------------------- Mr.Ajit M. Savagave i/by Mr.S.S.Patwardhan for the petitioner. Mr.A.V.Borwankar i/by Mr.Nitin P. Deshpande for respondents 1 to 3. CORAM : ANOOP V. MOHTA, J. DATED : 14.11.2008 P.C. The petitioner/defendant has challenged the order, whereby the court directed to begin with their evidence prior to the evidence of the plaintiff as per order 18,Rule 1 of C.P.C. on next date. This order is dated 4.8.07. The petition is pending since then. When the Suit is for partition and the defendant raises specific plea about previous partition of the suit property, in such 2 circumstances, there is nothing wrong when court passes such order directing defendant to begin with the matter. Even otherwise, such plea of previous partition as goes to the root of the matter in a suit for partition and whosoever raises that specific plea it is desirable that such party to lead evidence first. This Court in Bhagirath Bhagirath Bhagirath Shankar Shankar Shankar Somani & anr. vs. Somani & anr. vs. Somani & anr. vs. Rameshchandra Rameshchandra Rameshchandra D. Soni & anr. D. Soni & anr. D. Soni & anr. 2007(5) 2007(5) 2007(5) Mh.L.J. 508, Mh.L.J. 508, Mh.L.J. 508, while considering order 18, Rule 2 observed that normally there is no power to issue direction to the defendant compelling him to lead evidence before the plaintiff adduces his evidence. As observed further, that the court is not powerless to decide this issue that who should lead the evidence and if found so and direct accordingly. Therefore the order cannot be said to be perverse or contrary to the 3 law. The fact and the plea as raised in the present case, in my view, is sufficient to maintain the order. This order is even otherwise need no interference under Article 227 of the Constitution of India. The petition is dismissed. [ANOOP [ANOOP [ANOOP V. MOHTA,J.] V. MOHTA,J.] V. MOHTA,J.]