DATTATRAY NAMDEO PATIL Vs. RAM NAMDEO PATIL

JUDGEMENT

(1.) Rule, returnable forthwith. Heard finally.

(2.) The petitioner, who is original defendant no.4, has challenged the impugned order, below Exhibit 90, dated 22nd July, 2008 passed by the learned Joint Civil Judge, Junior Division, Panvel thereby allowing the Application filed by the plaintiff directed the defendants to begin the evidence in a Suit for partition and separate possession of ancestral property between the parties, referring to Rule 1 of Order XVIII of Code of Civil Procedure (CPC) by observing that defendant no.4 has to begin the evidence.

(3.) Admittedly, no such Application to begin the evidence was filed by the petitioner/defendant no.4. The Application was filed by the plaintiff. In the Suit, the defendants admit that the suit property is an ancestral property; and the plaintiff was separated from 1979; and he is not entitled for partition and the reliefs. This cannot be treated as admitted facts by overlooking the whole pleading of the parties. This itself is not sufficient to grant such application of the plaintiffs. The Court cannot compel and/or direct the defendants to lead evidence first. Rules 1 & 2 of Order XVIII of CPC entitle the defendant, who admits the facts, to begin the case first. It is an enabling provision. It is not mandatory. Such defendant, if apply and make such request and/or claim such right, the Court may pass such order. The Court cannot direct the defendant to begin the case in such fashion.