AMRUTLAL PARAGJI DESAI Vs. JAYABEN HARIBHAI PATEL

JUDGEMENT

(1.) RULE. Ms. Kruti Shah, learned advocate wavies service of notice of admission on behalf of the respondents. With the consent of the parties, the matter is taken up for final hearing today.

(2.) BY way of this petition under Article 227 of the Constitution of india, the petitioner-original defendant has prayed for an appropriate writ, direction and / or order quashing and setting aside order passed by the learned 4th Additional Senior Civil Judge, Valsad dated 20. 9. 2005 below Exh. 89 in Regular Civil Suit No. 179 of 1995, whereby the application Exh. 89 preferred by the original plaintiff respondent herein under the provisions of Order 18 Rule 1 and Rule 3 of the Code of Civil procedure came to be partly allowed against the petitioner-original defendant by directing the petitioner defendant to enter the witness box first and lead the evidence.

(3.) RESPONDENTS are the heirs of original plaintiff Haribhai bhimjibhai Patel who instituted Special Civil Suit No. 179 of 1995 in the Court of learned Senior Civil Judge, Valsad against the petitioner-defendant for specific performance of contract based on an agreement to sale dated 25. 8. 1991 with respect to the suit property. The petitioner-defendant filed his written statement denying the claim of the plaintiff contending that the petitioner has not abide by the terms and conditions of the contract and that he was never ready and willing to perform his part of obligation. It was also contended that the suit is time barred. The issues came to be framed by the learned trial Court vide Exh. 59. That, thereafter almost after a period of 2 years, plaintiff submitted the application Exh. 89 invoking the provisions of Order 18 Rule 1 and 3 of the code of Civil Procedure and prayed that in view of the fact that the defendant had admitted that there was an agreement to sale of the year 1991, the defendant should first step into the witness box and lead his evidence. It was also contended by the plaintiff that it is only after the defendant completes his evidence that he will lead if necessary. The learned trial Court partly allowed the said application by the impugned order holding that the plaintiff should declare as to on which issues he is not inclined to lead evidence and after the declaration by the plaintiff in this regard, the petitioner-defendant shall step into the witness box and start leading evidence. Being aggrieved and dissatisfied with the impugned order passed below Exh. 89, the petitioner-defendant has preferred Special Civil application under Article 227 of the Constitution of India.