IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4133 OF 2008 Vithal Chinnayya Shetty ...Petitioner Versus Santosh Anil Mishra ...Respondent ...... Mr.D.A.Athavale for Petitioner. Mr.M.U.Pandey with Mr.Rakesh Pandey for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. AUGUST 5, 2008. AUGUST 5, 2008. AUGUST 5, 2008. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Pandey waives notice for Respondent. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4. This Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the City Civil Court, : 2 : Dindoshi, Mumbai dated 6th February 2008 in S.C.Suit No.2694 of 1997 below Exhibit 5. The Respondent/Plaintiff had filed the said Application Exhibit 5 which reads thus : "The issues in the above suit are settled. The burden of proof of Issue Nos.2 and 4 are upon the Defendant. The Plaintiff, therefore, desires to lead evidence on the issue Nos.1, 3 and 5 and desires to reserve her right to lead evidence in rebuttal on issue Nos.2 and 4 after the Defendant lead his evidence. It is therefore, prayed that the Plaintiff be granted leave to lead evidence in rebuttal on the issue Nos.2 and 4 after the evidence of the Defendant." 5. In substance, the case of the Plaintiff is that the Defendant is responsible to adduce evidence with regard to issue Nos.2 and 4 as prayed and the Plaintiff be allowed to give rebuttal only after evidence of Defendant on those issues is adduced. The Court below has allowed the said Application filed under Order XVIII Rule 3 of the Code of Civil Procedure by passing following order: "O R D E R Ex.5 is hereby allowed. : 3 : Defendant is hereby directed to adduce his evidence first, to prove the issues Nos.2 and 4 of which burden cast on him then plff. can adduce his evidence. Adj. for Recording evidence of defendant to 28.3.08". 6. The grievance of the Petitioner/Defendant is that the Defendant cannot be forced to adduce his evidence in the first instance. It is the Plaintiff who has to first prove his case that the Plaintiff has acquired the suit plot from the original owner. The controversy canvassed before this Court can be answered only with reference to the issues as framed. For the time being, it is not necessary to advert to issue No.4. Insofar as issues 1 and 2 framed by the Trial Court, the same read thus: "1) Does the Plaintiff prove that the suit plot was acquired by her from the original owner? 2) Does the Defendant prove that he acquired the suit plot from the original owner as alleged in the written statement?" 7. Obviously on plain reading of these issues, it is evident that the stand of the : 4 : respective parties is overlapping and conflicting. In the circumstances, it is the Plaintiff who will have to first step in the witness box to prove his case that the suit plot was acquired by her from the original owner. Indeed, the Defendant will have to prove his case that he acquired the suit plot from the original owner as alleged in the written statement but that would be after the Plaintiff has already adduced her evidence in that behalf. To that extent, the direction issued by the Trial Court against the Petitioner/Defendant to first adduce evidence on issue No.2 cannot be sustained. Only to that extent, the impugned order is being interfered with. 8. Counsel for the Respondent/Plaintiff, however, contends that issue No.2 has not been correctly framed. That grievance can be made before the Trial Court, if so advised. The Trial Court may consider of reframing the issues, keeping in mind all the relevant aspects in accordance with law. 9. The only other question that remains to be : 5 : addressed is: whether the Defendant would be required to adduce evidence in the first instance with regard to the issue No.4 which reads thus: "4) Whether the Court has jurisdiction to try and entertain the suit?" 10. Indeed, it is the Defendant who will have to establish his plea that the concerned Court has no jurisdiction to try and entertain the Suit. To the extent of issue No.4, the Defendant will have to adduce his evidence in the first instance only on that issue. It is, however, clarified that after the recording of evidence of Defendant No.1 on this issue, the Trial Court can proceed to record the evidence of Plaintiff followed by that of the Defendants on other issues. However, the issue No.4 will have to be answered along with other issues at the final hearing of the Suit, as it is not an issue raised in terms of Section 9A of the Code of Civil Procedure and also because it is a mixed question of fact and law. 11. Accordingly, this Writ Petition partly succeeds to the above extent. The impugned : 6 : Judgment and Order is modified to the limited extent as referred to above. The Trial Court shall proceed with the trial on the basis of observations made in this order. 12. Petition disposed of on the above terms with no order as to costs. A.M.KHANWILKAR, J.