(1) WP. 1540.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1540 OF 2010 Bhalchandra S/o Ramrao Patil .. Petitioner VERSUS Smt. Sulyabai Raosaheb Patil and others .. Respondents Mr. Atul R. Kale, Advocate h/f. Mr. R.B. Deshmukh, Advocate for the Petitioner Mr. Dhananjay Mane, Advocate h/f. Mr. Milind Patil, Advocate for the respondent ... CORAM : V.R. KINGAONKAR, J. DATED : 21ST JUNE, 2010 ORAL ORDER:- 1] By this Petition, the petitioner challenges order passed by the learned Civil Judge (Senior Division), Nilanga directing the petitioner to tender his evidence first prior to that of the plaintiff. 2] The petitioner is original defendant. The trial Court framed following issues:- [i] Does the defendant no.2 Bhalchandra prove that land sy.no. 172/B and sy.no.90B are self-acquired property of defendant no. 3? [ii] Does defendants prove that the partition of the joint family property (2) WP. 1540.2010 bearing sy.no.33B sy.no.63A sy.no.89B and sy.no.110A has been effected in the year 1989? [iii] Does defendant no.2 prove that land sy.no.33A is his self acquired property? 3] The learned counsel for the petitioner seeks to rely on certain observations in "Bhagirath Shankar Somani and anr. Vs. Rameshchandra Daulal Soni and anr. 2007(5) Mh.L.J. 508" so also reference can be made to "Gouri Food Products, Nagpur Vs. Priya Trading Co., Nagpur 2002(4) Mh.L.J. 880 ” and "Haran Bidi Suppliers and anr. Vs. M/s. V.M. & Co. Bhandara 2001(4) Mh.L.J. 112”. In the above matters, the respective Single Judges have held that provisions contained in Order 18 Rule 1 of the Civil Procedure Code is only an enabling provision entitling the defendant of right to begin. The Court can-not give direction to the defendant to enter the witness box before the plaintiff and lead evidence in support of the case to be verified by him. It is therefore argued by learned counsel for the petitioner that the petitioner could not be directed to lead evidence by entering in the witness box because Order 18 Rule 1 of the Code of Civil Procedure, is only an enabling provision. 4] The issues mentioned above go to indicate that burden to prove the payment of entire dues is on the petitioner (defendant). The provision of Order (3) WP. 1540.2010 18 Rule 1 has to be considered alongwith sections 101 and 102 of the Evidence Act. The party having burden to prove a fact is required to discharge that burden initially and thereafter, the onus may shift to another party. There appears certain confusion in the concept of shifting of onus and burden of proof. The burden can-not shift whereas the onus may shift during the course of trial. It is oscillating process throughout the trial. Obviously, if the petitioner will prima facie prove the payment of the dues by adducing necessary evidence, then the onus may shift on the respondent to prove otherwise. If the petitioner will not lead any evidence, and will take chance to gather some admissions of the respondent (plaintiff) during the course of cross- examination, with the help of certain documents, then it is choice of the petitioner to do so. It is true that the Court cannot insist that a party must lead evidence. It is well settled that the litmus test is to see which party will fail if no evidence is adduced. In the present case, the trial Court will have to examine whether the petitioner will fail and the suit will have to be straightway decreed if the petitioner will not lead any evidence to prove the alleged payments. The direction however, that the petitioner shall lead evidence is uncalled for. The reason is that it is the choice of the petitioner to start his evidence or not at all to lead any evidence. (4) WP. 1540.2010 5] Considering these aspects, it is clarified that the impugned order only makes the petitioner aware that he has right to begin but the direction that he should lead evidence prior to the plaintiff is not binding on him. The trial Court therefore, may proceed further according to law if no evidence is led by the petitioner. Writ Petition is dismissed. Sd/- [V.R. KINGAONKAR, J.] arp