1. Leave granted.

2. An acrimony between two uterine brothers had led to this unfortunate litigation and the fight has landed before the highest Court of the country, not on merits or on main matter, but they are still litigating or playing in the outer field instead of going to the goal post.

3. In a suit filed by the petitioner-plaintiffs for rendition of accounts and partition, had resulted in issues being framed by order dated 10.09.2024 (Annexure-P13) as it is evident from the said order itself, the burden has been cast on the respective parties to discharge their burden or in other words, as to prove the respective issues has been enumerated therein.

4. The short point, which has culminated in this litigation, revolves around issue nos.(iv) and (vii) and as such they are extracted herein below:-

                   "(iv) Whether the document dated 27.11.2007 namely Family Settlement, the document dated 17.07.2012 allegedly showing the settlement of accounts of Partnership firm-M/s. V Shah and Company and affidavit dated 16.10.2012 are genuine and valid documents executed by the parties including the plaintiff no.1?(OPD)

                   (vii) Whether late Smt. Pratibha Jain relinquished her 50% share and ownership rights in the suit property by executing the Memorandum of Family Settlement dated 27.11.2007?(OPD)"

5. It is an undisputed fact that in both these issues the burden has been cast on the defendant. It is the thrust of the arguments of Smt.Mahalakshmi Pavani, learned senior counsel, appearing for the appellants-plaintiffs that the trial Court in furtherance of Order XV-A sub-Rule 6(i) of the Code of Civil Procedure, 1908 (CPC) to contend that the trial Court was well within its domain to regulate the proceeding by deciding the order in which issues are required to be tried.

6. In the teeth of the said provision and notwithstanding anything contained under Order XVIII Rule 1 CPC and the intent of the legislature for case management of hearing empowering the trial Court with full powers to regulate the proceedings, has resulted in the instant case directing the defendant to enter the witness box first before the plaintiffs could enter the witness box and discharge the burden cast on him in proving the issue nos.(iv) and (vii), and this ought not to have been interfered by the High Court in exercise of the power under Article 227 of the Constitution of India.

7. Though the said argument, at first blush, looks attractive, a deeper examination of the facts on hand, would unsettle the said argument or in other words, we are unable to accept the argument put forth by Smt.Mahalakshmi Pavani, learned senior counsel. The reason is simple namely the right to begin trial, cannot be held to be vested with either of the parties. It is for the Court to regulate the proceedings. It all depends upon the facts and circumstances of the case, the issues framed or in other words, the trial Court will regulate the proceedings depending upon the facts how it travels in other words, it depends upon the terrain of facts in which it travels.

8. Keeping this in mind, when the impugned order passed by the High Court is perused, it would clearly reveal that proving of issue nos. (i), (vi), (viii), (ix) and (x) the burden is on the plaintiffs. In other words, notwithstanding the proving of issue nos. (iv) and (vii) by the defendant independently, the plaintiffs will have to prove issue no. (i). Undisputedly, it is for this precise reason, this Court posed a specific question to the learned senior counsel for appellants-plaintiffs as to whether the defendant is ready and willing to file an affidavit to agree for suit being decreed in the event of issue nos.(iv) and (vii) being held in the negative, the learned senior counsel was unable to answer either in the affirmative or in the negative, for want of instructions.

9. It is in this background, we have examined the matter on merits itself and find that proving issue no. (i) burden is cast on the plaintiffs as such it is the plaintiffs who has the right to lead the evidence and it is needless to state that the issue relating to proving of the burden is like a pendulum oscillating in a clock and keeps shifting. In the event the defendant were to prove issue nos. (iv) and (vii), the necessary corollary would flow probably also on issue no.(i) for plaintiffs to prove the same and likewise on other issuees.

10. However, at this stage, in the absence of evidence, we do not propose to delve upon the merits as it is likely to prejudice rights of either of the parties. Hence, without finding any infirmity in the impugned order and sustaining the same, we dismiss the Civil Appeals.

11. The impugned orders are upheld except to the extent of setting aside the cost of Rs.25,000/- which has been imposed by the High Court as we are of the considered view that the right cause has been tried to be espoused in different forums by the defendant and as such the imposition of cost on the premise that it is a commercial litigation, in the peculiar facts and circumstances of the case, may not be warranted. Accordingly, the cost imposed stands waived.

12. Pending application(s), if any, shall stand disposed of.