1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6674 OF 2009 Suresh M. Jaisinghani ........ Petitioner versus Gurumukh Morandmal Jainsinghani & anr.........Respondents. Mr. A.A. Kumbhakoni Sr. counsel i/b. G.H. Keluskar adv. for the Petitioner Mr. V.Z. Kankaria Sr. counsel i/b.S.H. Joshi adv. for the Respondent. CORAM: A. P DESHPANDE, J. DATED : 01st December, 2009. P. C.: 1. Rule. Rule made returnable forthwith. By consent of parties taken up for final hearing. 2. This petition filed by the obstructionist is directed against the order passed by the executing court in an application moved by the respondent/decree holder under Order 21 Rule 97 of CPC refusing to re-cast the issue, urging that the burden of proof ought to be placed on the decree holder. 3. Few facts that are relevant, are stated herein below: The petitioner and the respondent no.1 are real brothers whereas the respondent no.2 is the mother of the petitioner. The 2 respondent no.1 instituted a suit against the respondent no.2 mother, for possession of suit premises which is a shop wherein the present petitioner claims to be carrying on business. The suit filed by the respondent No.1 against respondent no.2 came to be decreed on consent terms being filed by the respondents. It is pertinent to note that the respondent no.1 did not implead the petitioner as party defendant in the suit and compromise decree came to be passed on account of consent terms entered into by the respondent nos.1 and 2 as stated herein above. The decree so obtained has been put in execution by the first respondent. When the decree was sought to be executed and the petitioner apprehended his dispossession, he moved the trial court by making an application purportedly under Order 21 Rule 97 and prayed for registration of his obstruction. The trial court allowed the application though the same truly speaking was not maintainable at the behest of the present petitioner and directed the decree holder to file an application for removal of obstruction. It will not be out of place to state at this juncture that the respondent no.1 has suffered the order passed on an application moved by the petitioner purportedly under Order 21 Rule 97 and the said order dated 1-9-2008 has attained finality. Thus what is pending before the executing court is an application moved by the respondent no. 1 under Order 21 Rule 97 for removal of obstruction caused by the present petitioner. The trial court in the above set of facts framed issues casting the burden on the obstructionist/petitioner to prove that the decree holder has obtained the decree in collusion with 3 the judgment debtor. Aggrieved by framing of issue no. 1 which cast burden on the present petitioner, he moved an application for recasting the issues and urged that the burden to prove issue nos.1 ought to be placed on the decree holder. The trial court rejected the same. Hence this petition. 4. According to the learned counsel for the petitioner, the impugned order is patently illegal in as much as it holds that as the obstructionist has asserted his right in the suit shop, it is the boundened duty of the petitioner to prove the facts as required by section 101 of the Evidence act. The Court observes in para 9 of the impugned order thus: “If no evidence is adduced on record, the objection is bound to fail and the court will proceed with the execution of the unchallenged decree. Therefore under sec. 102 of the Evidence Act the burden to prove the facts asserted by the obstructionist regarding his legal rights lies on him”. Section 101 which deals with burden of proof lays down that 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 exists, When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person, Section 102 lays down on whom burden of proof lies: It 4 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. 5. Thus the crucial test to find out as to on whom the burden of proof lies, is to examine as to who will fall in the absence of any evidence being led by any of the parties. It does not need any further elaboration to state that in a suit if the plaintiff fails to lead any evidence, the suit is bound to fail and in other proceedings if the applicant fails to lead any evidence the application would fail. In the present case the application is moved by the respondent under Order 21 Rule 97 for removal of obstruction and thus if no evidence is led by the respondent, it is his application which would fail. Consequently I have no iota of doubt that having regard to the provisions of section 102 of the Evidence Act, the burden of proof would lie on the respondent and hence the issue ought to have been properly recasted as urged by the petitioner. It will not be out of place to mention that Rule 105 of Order 21 regulates hearing of all applications filed under Order 21. Sub rule (2) thereof reads thus”: 105(2): Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.” 6. The consequences of non-appearance of the applicant when th case is called out, is stated in sub rule 2. The same anology will 5 apply when the applicant does not lead any evidence, in which case the application will have to be dismissed. Reading of the relevant provisions including rule 105 leave no room of doubt that the burden would be on the decree holder when the application under Order 21 Rule 97 is the subject matter of adjudication. 7. The learned counsel for the respondent has placed reliance on a judgment of Orissa High Court reported in 2002 AIHC 3242 to contend that the third party objector stands on the footing of the plaintiff and hence burden would lie on the objector. Perusal of the paragraph 10 of the judgment clearly reveals that the said judgment does not deal with that issue at all. The head note is not in tune with the text of the judgment. In para 10, the court has observed thus: “In other words the resister stands at the footing of plaintiff and the decree holder at the footing of a defendant in a suit. That legal position is not disputed at the bar “ 8. It can thus be seen that the court has not addressed the issue at all but has gone by the concession made available by the learned advocates at the bar who did not dispute the proposition, that the resister stands at the footing of the plaintiff and the decree holder at the footing of the defendant. This being the position the said judgment does not advance the case of the respondent any further. As I am of the clear view that the impugned order suffers from a patent illegality this petition deserves to be allowed to the 6 extent it relates to refusal to recast the issue no.1. Issue no.1 shall stand deleted and at its place substitute the following: “Whether the applicant/decree holder proves that the obstructionist is bound by the decree passed by the Civil Judge in Special Civil Suit No. 16/08?”. 9. Writ petition is partly allowed and disposed of. (A. P. Deshpande, J.)