Bombay High Court
M/S. CREATION A PARTNERSHIP FIRMversusKIRTI SOHAN MODI AND ORS
- Decided
- Disposal
- Disposed Off
- Bench
- MADHAV JAMDAR
Holding
In consolidated suits, the court may record evidence commonly and allow the plaintiff to lead rebuttal evidence after the defendant, as authorized by Order XVIII, Rule 2 of the CPC and the precedent set in Bhagirath Shankar Somani.
Summary
The petitioner, a partnership firm, filed a writ petition under Article 227 challenging orders of the Small Causes Court that directed common recording of evidence in two related suits (L.D. Suit No. 52 of 2008 and L.E.&C. Suit No. 142 of 2016) and allegedly shifted the burden of proof onto the petitioner. The High Court examined whether the trial court could order such consolidation and whether the petitioner could lead rebuttal evidence after the defendant, referring to Order XVIII, Rule 2 of the CPC and the decision in Bhagirath Shankar Somani v. Rameshchandra Soni. It held that, in consolidated suits, the court may allow common evidence and permit the plaintiff to lead rebuttal evidence in accordance with the CPC provision. Consequently, the Court quashed the earlier orders that barred the petitioner from filing additional evidence and granted liberty to file an affidavit of additional evidence and to lead rebuttal evidence. The writ petition was disposed of without any order as to costs.
Issues considered
- Whether the order directing common recording of evidence in the two suits shifts the burden of proof to the petitioner
- Whether the petitioner is entitled to lead rebuttal evidence after the defendant under Order XVIII, Rule 2 of the CPC
- Whether the orders dated 9 September 2025 and 8 January 2026 are legally valid
- Whether the adjournment order of 16 January 2026 should be set aside
Legislation cited
- Code of Civil Procedure, 1908 — s. Order XVIII, Rule 2
Subjects
- Writ petition
- Article 227
- Common evidence
- Burden of proof
- Order XVIII Rule 2
- CPC
- Small Causes Court
- Consolidation of suits
- Rebuttal evidence
- Injunction
- Compensation
Judgment
941-WP-913-2026.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.913 OF 2026
M/s. Creation, a Partnership Firm …Petitioner
Versus
Kirti Sohan Modi & Ors. …Respondents
Mr. Prasad Dhakephalkar, Senior Advocate a/w. Mr. Tanvir Shaikh
i/b. Mr. Sanjay Manek, for the Petitioner.
Mr. Mohan Bir Singh a/w. Ms. Pooja Jalan i/b. MBS & Co., for the
Respondent No.3.
CORAM: MADHAV J. JAMDAR, J.
DATED : 28th JANUARY 2026
PC:-
1. Heard Mr. Dhakephalkar, learned Counsel appearing for the
Petitioner and Mr. Singh, learned Counsel appearing for the
Respondent No.3.
2. By the present Writ Petition filed under Article 227 of the
Constitution of India, the challenge is to the legality and validity of
the order dated 9th September 2025 passed by the learned Judge of
the Small Causes Court, Mumbai below Exhibit-41 in L.E. & C. Suit
No.142 of 2016 as also to the order dated 8th January 2026 passed
by the learned Appellate Bench of the Small Causes Court, Mumbai
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in Revision Application No.288 of 2025 in Order Below Exhibit
No.41 of 2025 in L.E. & C. Suit No.142 of 2016. The Operative Part
of the said order dated 9th September 2025 reads as under:
“ORDER
1. The application is allowed.
2. The plaintiff in L.E. & C. Suit No.142 of 2016 is
permitted to defer the recording of his evidence
until the defendant in the present matter, who is the
plaintiff in L.D. Suit No.52 of 2008, has completed
filing his evidence.
3. It is directed that the evidence of witnesses shall
be recorded commonly in L.D. Suit No.52 of 2008.
4. The common evidence so recorded shall be read
in both suits at the stage of final disposal.
5. The plaintiff in L.D. Suit No.52 of 2008 is
directed to file any additional evidence, if any, in
light of the decision to record evidence commonly
for both suits.
6. The cross-examination of PW-1 in L.D. Suit No.52
of 2008 shall continue.
7. The Judicial Clerk is directed to maintain a clear
and organized record of all evidence and exhibits,
properly tagged for use in both suits at the time of
final disposal.”
(Emphasis added)
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3. By the impugned order dated 8 th January 2026 of the
learned Appellate Bench of the Small Causes Court, Mumbai,
Revision challenging the said order dated 9 th September 2025 has
been dismissed.
4. By the impugned order dated 9 th September 2025 it is
directed that the evidence of witnesses shall be recorded
commonly in L.D. Suit No. 52 of 2008. Thus, in effect what the
learned Trial Court has directed by the impugned order dated 9 th
September 2025 that common evidence will be recorded in L. E. &
C. Suit No.142 of 2016 filed by the present Respondents and L.D.
Suit No. 52 of 2008 filed by the present Petitioner.
5. In the meanwhile, by further order dated 16 th January 2026
passed by the learned Judge of the Small Causes Court, Mumbai,
adjournment application filed by the present Petitioner has been
rejected and further evidence of the present Petitioner is closed
and the matter was posted for evidence of the Respondent.
6. One of the apprehensions expressed by Mr. Dhakephalkar,
learned Senior Counsel is that the burden which is on the
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Respondent i.e. Plaintiff in L. E. & C. Suit No. 142 of 2016 to prove
his case is shifted to the present Petitioner i.e. Plaintiff in said L.D.
Suit No.52 of 2008.
7. For appreciating the said contention, it is necessary to set out
the issues framed in L.D. Suit No. 52 of 2008 and L. E. & C. Suit
No. 142 of 2016. The learned Trial Court by order dated 10 th April
2018 framed the following issues in L.D. Suit No. 52 of 2008:
“I S S U E S
1. Does Plaintiff prove that it has legal right in Suit
Premises?
2. Does Plaintiff prove obstruction at hands of
Defendants?
3. Is Suit bad for want of permission of Charity
Commissioner under Section 5 of BPT Act, 1950?
4. Is Plaintiff entitled to relief of perpetual
Injunction as prayed?
5. What order and decree?”
8. Learned Trial Court by order dated 28th February 2020
framed the following issues in L. E. & C. Suit No. 142 of 2016:
“I S S U E S
1. Do Plaintiffs prove that the Defendants
unilaterally extended agreement dated 26/9/1996
from 1/4/2007 to 31/3/2015?
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2. Do Plaintiffs prove that the Defendants are liable
to pay compensation/damages of Rs.1,27,88,182/-
for the period from 01/04/2007 to 30/11/2009 @
3.74,000/- pm along with service tax @ 10.317
towards use of the suit premises.
3. Whether the Plaintiffs are entitled to get vacant
and peaceful possession of the suit premises?
4. Whether the Plaintiffs are entitled to get
compensation as prayed? If Yes, How Much?
5. Whether the Plaintiffs are entitled to get
permanent injunction against the Defendants as
prayed?
6. What order and decree?”
(Emphasis added)
9. At the outset, it is required to be noted that Mr. Singh,
learned Counsel appearing for the Respondent No.3 submitted that
the burden to prove the issues in L. E. & C. Suit No. 142 of 2016
will always remain on the Respondents i.e. Plaintiffs in the said
suit and he submits that for the purpose of clarity, his statement to
that effect made on behalf of the Plaintiffs in said L.E. & C. Suit
No.142 of 2016 be recorded.
10. In any case, even if two suits are clubbed together as some of
the issues and the suit property is the same, by clubbing both suits
together it cannot be said that burden to prove issues in L. E. & C.
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Suit No. 142 of 2016 stands shifted on the Defendants in the said
suit. However, this point need not be considered in detail as Mr.
Singh, learned Counsel appearing for the Respondent has clarified
the position as recorded earlier.
11. Mr. Singh, learned Counsel submits that the order dated 16 th
January 2026 passed by the learned Judge, Small Causes Court,
Mumbai below Exhibit-1 in L.D. Suit No.52 of 2008 and below
Exhibit-146 in L. D. Suit No. 52 of 2008 be quashed and set aside
and by consent the Petitioner be granted liberty to file additional
evidence, if any.
12. Accordingly, by consent, order dated 16 th January 2026
passed by the learned Judge, Small Causes Court, Mumbai below
Exhibit- 1 in L. D. Suit No. 52 of 2008 as also the order dated 16 th
January 2026 passed by the learned Judge of the Small Causes
Court below Exhibit- 146 in L. D. Suit No. 52 of 2008 are quashed
and set aside. The Petitioner is at liberty to file additional evidence
if any, on or before 17th February 2026.
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13. The other apprehension expressed by Mr. Dhakephalkar,
learned Senior Counsel is that the burden is on the Plaintiffs with
respect to issue No.2 framed in L. E. & C. Suit No. 142 of 2016 to
prove that the Defendants are liable to pay the amount of
compensation/damages. He submits that burden as far as issues
framed in L. E. & C. Suit No. 142 of 2016 is always on the
Respondents i.e. Plaintiffs in said suit. On the basis of the decision
of this Court in the case of Bhagirath Shankar Somani & Anr. vs.
Rameshchandra Daulal Soni & Anr.1, he submits that the Petitioner
be given right to lead evidence in rebuttal after the Defendant in
L. D. Suit No. 52 of 2008 leads his evidence. He submits that
Order XVIII, Rule 2, of the Code of Civil Procedure, 1973, gives
power to the Court to allow the Plaintiff to lead evidence in
rebuttal after the Defendant leads his evidence.
14. In the context of the above submissions raised by Mr.
Dhakephalkar, learned Senior Counsel, it is necessary to see
Bombay Amendment of Order XVIII, Rule 2 of the CPC. The
Bombay Amendment shows that the Madras Amendment is
adopted by the Bombay Amendment. As far as Madras Amendment
1 2007 (5) Mh.L.J.
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is concerned, under Order XVIII, Rule 2, at the end of the said
provision following explanation is inserted:
“Explanation.— Nothing in this rule shall affect the
jurisdiction of the Court, for reasons to be recorded
in writing, to direct any party to examine any
witness at any stage.”
(Emphasis added)
Thus, power is given to the Court for reasons to be recorded
in writing to direct any party to examine any witness at any stage.
15. In this case, the facts are peculiar. The Petitioner filed L. D.
Suit No. 52 of 2008 inter alia seeking the following reliefs:
“a) for a permanent Order and injunction
restraining the Defendants, their servants and
agents and any other persons claiming under them
from taking any steps otherwise than in due course
of law to obtain possession of the suit premises or
interfere in any manner with the Plaintiffs'
possession of the suit premises and/or the Plaintiffs'
rights to use and enjoy the same and carry on their
business from the suit premises, viz. an area/site of
24'x13" x 49x6" on the terrace on the top of the
third floor of the Girikunj building situate at 11,
N.S. Patkar Marg, Mumbai - 400 007, including the
structure constructed thereon by the Plaintiffs with
cement concrete foundation and with height of
about 30 ft., length 37 ft., and average depth of 15
ft. with permanently affixed two illuminated
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hoardings one of 40x20 and other of 20'x20' from
the Plaintiffs;
(b) pending the hearing and final disposal of the
suit for an Order and injunction restraining the
Defendants, their servants and agents and any other
persons claiming under them from taking any steps
otherwise than in due course of law to obtain
possession of the suit premises or interfere in any
manner with the Plaintiffs' possession of the suit
premises and/or the Plaintiffs' rights to use and
enjoy the same and carry on their business from the
suit premises, viz. 24' 13" x 49' 6" on the terrace on
the top of the third floor of the Girikunj building
situate at 11, N.S. Patkar Marg, Mumbai 400 007,
including the structure constructed thereon by the
Plaintiffs with cement concrete foundation and with
height of about 30 ft. length, 37 ft. and average
depth of 15 ft. with permanently affixed two
illuminated hoardings one of 40'x20 and other of
20x20' from the Plaintiffs;
(c) pending the hearing and final disposal of the
suit for a direction and order permitting the
Plaintiffs without prejudice to all the rights and
contentions of both the Plaintiffs and Defendants to
deposit the said amount of Rs.30,000/- p.m. in this
Hon'ble Court, subject to the final decision of any
Hon'ble Court, as to the amount of the fair and
equitable enhancement if any which is payable in
law by the Plaintiffs to the Defendants w.e.f.
1/4/2007.”
16. In the meanwhile, in the year 2010 the suit is filed by the
present Respondents in the High Court and the same was
thereafter transferred to the Small Causes Court, Mumbai and
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numbered as L. E. & C. Suit No. 142 of 2016. The said suit has
been filed seeking injunction and direction to the Defendant i.e.
Petitioner to pay a sum of Rs.1,27,88,182/- as
compensation/damages and other reliefs. Both these suits have
been thereafter consolidated by order dated 29 th November 2017
passed by the learned Judge of the Small Causes Court, Mumbai.
In these peculiar facts, the Petitioner i.e. the Defendant in L. E. &
C. Suit No. 142 of 2016 has also required to lead evidence
concerning issues which are framed in L. E. & C. Suit No. 142 of
2016 at the time of giving evidence in said L.D. Suit No.52 of
2008.
17. In view of consolidation of both the suits and in view of the
direction contained in the impugned order that evidence of
witnesses shall be recorded commonly in both these suits and
therefore, in peculiar facts after evidence of the Respondents is
recorded commonly in L. D. Suit No. 52 of 2008 and L. E. & C. Suit
No.142 of 2016, the Petitioner is at liberty to lead evidence in
rebuttal in terms of the law laid down by this Court in the decision
in the case of Bhagirath Shankar Somani (supra) read with
proviso to Order XVIII, Rule 2 of the CPC.
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18. Accordingly, for above reasons, the Writ Petition is disposed
of by passing the following order:
ORDER
a) By consent of the parties, order dated 16 th January 2026
passed by the learned Judge, Small Causes Court, Mumbai
below Exhibit- 1 in L. D. Suit No. 52 of 2008 as also the
order dated 16th January 2026 passed by the learned Judge
of the Small Causes Court below Exhibit- 146 in L. D. Suit
No. 52 of 2008 are quashed and set aside. The Petitioner is
at liberty to file Affidavit of Additional Evidence if any, on or
before 17th February 2026.
b) In view of consolidation of both the suits and in view of the
direction contained in the impugned order that evidence of
witnesses shall be recorded commonly in both these suits
and in peculiar facts of this case, after evidence of the
Respondents is recorded commonly in L. D. Suit No. 52 of
2008 and L. E. & C. Suit No.142 of 2016, the Petitioner is at
liberty to lead evidence in rebuttal in terms of the law laid
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down by this Court in the decision in the case of Bhagirath
Shankar Somani (supra) read with proviso to Order XVIII,
Rule 2 of the CPC.
19. Thus, the Writ Petition is disposed of in above terms with no
order as to costs.
[MADHAV J. JAMDAR, J.]
Digitally
signed by
SONALI
SONALI MILIND
MILIND PATIL
PATIL Date:
2026.02.10
18:54:34
+0530
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