Sushila Khandelwal and Others vs Lalita Khandelwal and Others

S.K. Gangele, J.—Heard. The petitioners have filed this petition against the order dt. 21.12.2011 (Annexure P/1) passed by the trial Court.

Before the trial Court, the petitioners submitted an application under Order 18 Rule 3 of CPC. The petitioners pleaded that the burden to prove

issue Nos. 2, 6 to 10 and 12 is on the defendants, hence, the petitioners be permitted to reserve their right to produce evidence after the evidence

of the defendants. That application has been rejected by the trial Court.

The trial Court after appreciation of evidence has held that the plaintiffs filed a suit for permanent injunction and declaration in regard to a

property and the issues have been framed in regard to the same relief and the plaintiffs are required to prove their case. The provisions of Order 18

Rule 3 read as under:-

R.3. Evidence where several issues.-Where there are several issues, the burden of proving some of which lies on the other party, the party

beginning may, at his opinion, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other

party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the

other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply

generally on the whole case.

In accordance with the aforesaid provisions, if there is burden of proof on a party to prove the issue, then the aforesaid party has to produce

evidence on the issue but in the present case, the trial Court has rightly observed that the burden is on the plaintiff, hence, there is no error of

jurisdiction committed by the trial Court.

The learned counsel for the petitioners relied on the following judgments to substantiate his claim:

(i) Illapu Nookalamma Vs. Illapu Simchachalam,

(ii) Sohanlal v. Mohanibai 1993 (II) MPWN 105.

The petitioner also challenged the same order, by which the trial court rejected the application of the petitioner under Order 11 Rule 14 of CPC.

The petitioners prayed before the court that the respondents be directed to produce registered sale deeds. The aforesaid prayer has been

refused by the Court on the ground that the respondents pleaded that the aforesaid sale deeds are not in their possession. The petitioners can very

well take certified copy of the sale deeds and produce the same before the court. Similarly, the petitioners prayed that the respondents be directed

to produce D-met accounts of Shriram Transport Company and documents related to LIC Mutual Fund. The trial Court has observed that those

documents are not relevant in the case. In such circumstances, in my opinion there is no error of jurisdiction committed by the trial court in passing

the order. Consequently, I do not find any merit in this petition. It is hereby dismissed. No order as to costs.