SANGRAM SINGH Vs. RAN VIJAY SINGH

JUDGEMENT

(1.) IN this petition, under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 23.4.2014 by which the application preferred by the plaintiff under Order 18 rule 3 of the Code of Civil Procedure dated 12.4.2013 has been allowed and the defendants have been directed to adduce the evidence.

(2.) FACTS giving rise to filing of the writ petitioin, briefly stated, are that the respondent No. 1 /plaintiff had filed the suit seeking the relief of declaration and permanent injunction. The claim in the suit was based on the ground that the suit property belongs to the joint family and the plaintiff being a member of the joint property is having a share in the same. It is also submitted that partition had already taken effect prior to filing of the suit. The plaintiff had executed a power of attorney in respect of his share in favour of defendant No. 1. The plaintiff filed the examination -in -chief of his witnesses in the form of affidavit on 4.4.2013, thereafter, he filed an application under Order 18 rule 3 of the Code of Civil Procedure on 12.4.2013, which has been allowed by the trial Court.

(3.) LEARNED counsel for the petitioner while inviting attention of this Court to the provisions of Order 18 rules 1 and 3 of the Code of Civil Procedure submitted that the plaintiff in fact had waived the right to ask the defendants to adduce the evidence as the examination -in -chief in the form of affidavit was filed prior to filing of such an application. On the other hand, learned counsel for the respondent No. 1 has placed reliance on the decision in the case of Jhadiram v. Manpyare, reported in 1978 (II) MPWN 63 in support of his submission and has pointed out that the defendant had taken the plea that partition in respect of the suit property had already taken place, therefore, the defendant should have no objection to lead the evidence and in case he succeeds in proving the factum of the partition, the suit of the plaintiff would fail.