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SCA/13066/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13066 of 2010
=========================================
PATEL
SULOCHANABEN D/O SAKALCHAND JETHALAL W/O RAMESHBHAI & 1
Versus
ALPABEN
D/O ISHWARBHAI ATMARAMPATEL W/O KETANBHAI NATVARLAL & 3
=========================================
Appearance
:
MR MIHIR THAKOR FOR MR. SHITAL
R PATEL for Petitioners
None for
Respondents
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 06/10/2010
ORAL
ORDER
[1] The
order dated 6th September, 2010 passed below Ex.336 by the
learned trial Court in Special Civil Suit No.100 of 2001 is brought
under challenge.
[2] Besides
the aforesaid order, another order of even dated 6th
September, 2010 passed below Ex.176 by the learned trial Court in
Special Civil Suit No.49 of 2003 is also brought under challenge.
[3] So far
as the order in Special Civil Suit No.100 of 2001 is concerned, the
case of the petitioners original defendant Nos.1 and 2 is that
the respondent Nos.1 and 2 original plaintiffs has filed the suit
on the allegations that the document (sale deed) is a fabricated
document, however, the burden of proving the document as genuine is
cast upon the petitioners i.e. original defendants.
[4] So far
as the challenge against the order below Ex.176 is concerned, the
grievance of the petitioners is that originally, by order dated 21st
July, 2010 the learned Court had framed issue taking into account the
defence of the petitioner that the suit property was purchased by him
from his own fund. However, the issue was framed in such manner that
the burden of proving the defence was cast upon the plaintiffs i.e.
present respondent instead of putting it an end on the original
defendants and, therefore, the said issue. But the issue No.2(3)
could not have been deleted. Instead of modifying the said issue it
has been ordered to be deleted. Aggrieved by the said order deleting
the issue No.2(3) and also by the order putting burden of proof upon
the petitioners instead of the respondents, the petitioner has
preferred present petition.
[5] Heard
Mr.Mihir Thakor, learned senior advocate for Mr.Shital R. Patel,
learned advocate for the petitioners.
[6] It is
submitted that the list of witnesses has yet not been filed by either
of the parties.
[7] By way
of ad-interim, until the returnable date, the operation of the
aforesaid impugned orders shall remain stayed. Notice for final
hearing returnable on 25th October, 2010.
The respondents to take note that the petition may be heard finally
on the next date. To be placed in first ten matters in first board.
Direct service is permitted.
[
K. M. THAKER, J. ]
vijay
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