BAIDHAR BEHERA AND ORS. Vs. PRANABANDHU MAHARATHA

JUDGEMENT

(1.) ORIGINAL Suit No. 167 of 1960 had been adjourned to 16 -4 -1963 on the application for time filed by the Defendants when the Plaintiff was ready for hearing. On that date Plaintiff filed hazira. Defendants filed a time petition on the ground that their main witness D.C. Das was ill, and as such, they were not ready with the case. This application was rejected. The learned Munsif also made clear in his order that if the Defendants 80 wanted, they could examine their particular witness on commission ready. Later in the day, both parties became ready. That order may be quoted in full for bringing out the point clearly. Both parties are ready. Suit opened. Heard the facts of the case for both sides. Plaintiff 's advocate raised the question of onus; The Defendants argue that when they have purchased the property from a lady who was separate, it is for the Plaintiff to prove that he succeeds to the property by survivorship.

(2.) BEFORE I take up the case, it is worthwhile observing that the order dated 13 -7 -1963 unequivocally indicates that the learned Munsif hardly understood the case. He stated that the judgment was delivered on contest under Order 17, Rules 2 and 3 but not under Order 9. It is difficult to follow what the learned Judge meant by this sentence. Mr. S.C. Mohapatra attacked the appellate judgment on four grounds:

(3.) THE first contention, though attractive, has no substance. The caption of the Chapter dealing with Order 18 is to the effect Hearing of The Suit And Examination of Witness. Order 18, Rule 1 comes within that Chapter and is not excluded from the purview of hearing. The language of Rule 1 also leads to the same conclusion. Order 18, Rule 1 may be quoted -