RAMKISHORE VASHIST Vs. MITHLESH

JUDGEMENT

(1.) IN a Civil Suit filed by the respondent No. 1/plaintiff, the petitioner/defendant No. 1 filed a counter claim. The Court below framed eight issues on 18.10.2010 (Annexure P/4). The petitioner preferred an application under Order 14 Rule 5 C.P.C. and prayed for framing of certain other issues. During course of argument, Shri Chaturvedi, learned Sr. Counsel stated that he is not pressing relief regarding reframing of issue mentioned in para 2 of application Annexure P/5. The respondent No. 1/plaintiff preferred an application under Order 18 Rule 3 C.P.C. Annexure P/7, wherein It is prayed that whole case of defendants is based on a will, thus the burden to prove factum of will is on the shoulders of defendant No. 1. Hence, defendant No. 1 be directed to lead evidence first. The Court below by the impugned order, allowed the application preferred under Order 18 Rule 3 C.P.C. and rejected the application Annexure P/4. This rejection order dated 24.01.2011 is called in question in the present petition.

(2.) SHRI K.B. Chaturvedi, learned Sr. Counsel criticized the order of the Court below. In para 3 of Annexure P/5 it is urged that issue was required to be made whether there exists any property which is mentioned in the map enclosed with the plaint. Learned Sr. Counsel further submits that no issue is framed as pointed out in para 4 of the application (Annexure P/5). It is submitted that the Court below should have decided the issue No. 3 as preliminary issue. Criticizing the impugned order, it is submitted that Court below has merely stated that issue already framed covers the grievance of the petitioner. No reasons are assigned in the impugned order, which runs contrary to the judgment of this Court reported in, 2012 (4) MPLJ 164 (Rasul Kha S/o Ajmeri Kha Vs. State of M.P.). He further submits that there is no whisper in the order as to why issue No. 3 should not be decided as preliminary issue. It is further submitted that respondent No. 1 is the plaintiff and burden lies on his shoulders to prove his case. Court below has erred in allowing the application under Order 18 Rule 3 C.P.C.

(3.) I have heard learned counsel for the parties and perused the record.