ASHA DEVI Vs. SHAKUNTALA BAI AND ORS

JUDGEMENT

(1.) The parties are at loggerheads in relation to order dated 05.05.2015 whereby the court below directed the respondents No. 2 & 3 to cross-examine the plaintiff's witnesses and thereafter defendant No.1 shall start the cross-examination. The respondent No.1 / plaintiff filed a suit for declaration and permanent injunction. The defendants filed their written statements. Court below framed 11 issues on 14.12.2010 and 04.04.2015 respectively. At the time of recording of evidence, request was made by the counsel for defendant No.1 before the court below that Advocates of respondents No. 2 & 3 will cross-examine the plaintiff first and then defendant No.1 will start the cross-examination. The Court below allowed this prayer.

(2.) Shri K.S. Tomar, Sr. counsel, criticized this order by contending that issues No. 2, 3 & 11 make it clear that burden to prove the issues was on plaintiff. The court below without going into the merits of the issues, mechanically directed for starting crossexamination of plaintiff by defendant No.3. It is further urged that as per Section 102 and 106 of the Evidence Act, the burden lies on the party who substantially asserts the affirmative of the issue and not upon the party who denied it. Plaintiff was bound to give and prove the existence of fact asserted by him. Thereafter respondent No.1 was required to cross-examine the plaintiff. In the present matter, defendant No.3 has no where contested the matter. Thus, respondent No.3 is not legally bound to start the cross-examination because she is also claiming 1/4th share in the property.

(3.) I have also heard Shri B.B. Shukla, Advocate for the respondent No.1, Shri B.D. Jain, Advocate for the respondent NO.2 and Shri M.B. Mangal, Advocate for the respondent No.3. Shri Jain and Shri Mangal supported the order of the court below.