MOHAMMED SULTAN MOHAMMED Vs. MOHAMMED NURANI MOHAMMED

JUDGEMENT

(1.) This petition is directed against the judgment and order dated 23-8-1993 passed by the Civil Judge, Senior Division, Malegaon on the application filed by the petitioners, who are original defendant Nos. 1 to 7, under Order 18 Rule 2 of the Code of Civil Procedure by which the prayer of the petitioners seeking direction to defendant Nos. 8 to 11 to produce their evidence in preference to all other defendants including the petitioners has been rejected. Such prayer was made in view of the fact that defendant Nos. 8 to 11 have supported the case of the plaintiffs insofar as the questioned gift deed dated 27th may, 1988, executed by Hazarabi in favour of the petitioners, is concerned and prayed for decreeing the suit for partition and separate possession of their share in the properties mentioned in paragraph 1 of the suit.

(2.) Mr. Mulla, learned counsel for the petitioners assailed the impugned order solely on the ground that the case of the plaintiffs has been supported by defendant Nos. 8 to 11 in whole and, therefore, they should address the court and produce their evidence in preference to other defendants who do not support the plaintiffs' case. In support of this submission he placed reliance upon the judgment in Shah Hiralal Himatlal and others vs. M. G. Pathak and others, AIR 1964 Guj. 26.

(3.) On the other hand Mr. Hiranandani, learned counsel for the respondents submitted that though defendant Nos. 8 to 11 have prayed for decreeing the suit, as prayed for by the plaintiffs, they have independently stated in their written statement as to why the gift deed cannot be acted upon and how that is affecting their right in the property. He further submitted that the provisions of Order 18 and in particular Rule 2 thereof do not give right to the defendant to insist for such directions in a suit for partition and separate possession of all the properties in the suit.