SCA/132/6508 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13265 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ===================================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ===================================================================== M/S. SHRI AGENCIES PROP.CONCERN OF & 1 - Petitioner(s) Versus NIMA MARKETING ENTERPRISE PROP. CONCERN OF - Respondent(s) ===================================================================== Appearance : MR HITESH N ACHARYA for Petitioner(s) : 1 - 2. NOTICE SERVED BY DS for Respondent(s) : 1, MR M.B.GANDHI, for Respondent(s) : 1, ===================================================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 17/12/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioners-original defendants have prayed for an appropriate writ, SCA/132/6508 2/11 JUDGMENT order and/or direction quashing and setting aside the impugned order dated 19.09.2008 passed by the learned City Civil Judge, Ahmedabad below application Exh. 63 in Summary Civil Suit No. 1231 of 2006, by which the learned Judge has rejected the said application submitted by the petitioners-original defendants requesting to recast/reframe the issues as mentioned in the said application. 2. The respondent herein original plaintiff had instituted Summary Civil Suit No. 1231 of 2006 in the City Civil Court at Ahmedabad for recovery of amount of Rs. 5,29,725/- for the goods supplied by the respondent-original plaintiff to the petitioners-original defendants and against the goods, the cheque was issued by the petitioners-original defendants and the same was dishonoured for want of sufficient amount and, therefore, aforesaid Summary Suit was filed. In the said Summary Suit, summons for judgment was taken out by the respondent-original plaintiff below application SCA/132/6508 3/11 JUDGMENT Exh. 11 and in the said suit, the petitioners- original defendants gave application for unconditional leave to defend and the learned Judge granted unconditional leave to the petitioners- original defendants. Thereafter, the learned Judge framed the following issues. (1)Whether the defendants prove that goods received acknowledgment were given to the plaintiff? (2)Whether the defendants prove that they have paid the amount of specific transaction invoice every time to the plaintiff? (3)Whether the defendants prove that the cheque in question was issued and deposited with the plaintiff in the year 2000 as security and not for discharge of any debt of Rs. 4,17,235/-? (4)Whether the defendants prove that no amounts are due and payable to the plaintiff? (5)Whether the defendants prove that cheque issued on 6-8-2003 was blank at the time of drawing and has effect of acknowledgment of SCA/132/6508 4/11 JUDGMENT the debt? (6)Whether the defendants prove that the accounting statements of the plaintiffs are correct and bonafide? (7)Whether the defendants prove that they are having relation as agent with the plaintiff? (8)Whether the defendants prove that this Court has no jurisdiction to entertain and try this suit? (9)Whether the defendants prove that they are not liable to pay interest? (10)Whether the defendants prove that the suit is barred by law of limitation? (11)Whether the plaintiff proves that an amount of cheque in question of Rs.4,17,235/- is due and payable to the plaintiff? (12)Whether the plaintiff proves that it is entitled to interest as claimed in the plaint? (13)What order and decree? 2.1 The petitioners-original defendants submitted SCA/132/6508 5/11 JUDGMENT application Exh. 63 to recast/reframe the issues more particularly issue Nos. 1,2,4,5,6 and 8 and it was requested to recast the aforesaid issues as under: (a) Whether the plaintiff proves that the defendant No. 1 firm has placed goods order at Ahmedabad as alleged? (b) Whether the plaintiff proves that the goods were delivered to defendant No.1 firm Ahmedabad to Kallam Maharashtra and was received by the defendant No.1 firm? (c) Whether the plaintiff proves the suit claim of Rs. 5,29,725/- as alleged in the plaint? (d) Whether the plaintiff proves that the court has jurisdiction to try this suit? 3. The said application came to be dismissed by the learned trial Court by the impugned order dated 1.09.2008. Being aggrieved by and dissatisfied with the impugned order dated 19.09.2008 passed by the learned City Civil Judge, Ahmedabad below application Exh. 63 in Summary Civil Suit No. SCA/132/6508 6/11 JUDGMENT 1231 of 2006, in not recasting the issues as prayed for, the petitioners-original defendants have preferred the present Special Civil Application under Article 227 of the Constitution of India. 4. Shri H.N. Acharya, learned Advocate appearing on behalf of the petitioners-original defendants have vehemently submitted that in the facts and circumstances of the case, the learned trial Court has materially erred in not recasting the issues, as prayed for, more particularly issue Nos. 1, 2, 4, 5, 6, and 8. It is submitted that by framing issue Nos. 1,2,4,5,6 and 8, burden is cast upon the petitioners-original defendants to prove the case, which otherwise is required to be proved by the plaintiffs. It is submitted that by the issues which are framed by the learned trial Court, the burden is cast upon the petitioners-original defendants to prove the goods received; to prove that they have paid the amount of specific transaction invoice; that no amounts are due or payable by the respondent- original plaintiff which are all contrary to the SCA/132/6508 7/11 JUDGMENT basic principle of the Evidence Act. Therefore, it is requested to allow the present Special Civil Application. 5. The petition is opposed by Mr. M.B. Gandhi, learned Advocate appearing on behalf of the respondent-original plaintiff. It is submitted that the issues are framed on the basis of the averments made in the plaint. It is also further submitted that at the relevant time, the issues are framed on the basis of the suggested issues by the learned Advocates appearing on behalf of the respective parties and at that time, learned Advocate appearing on behalf of the petitioners- original defendants did not raise any objection and, therefore, now it is not open for the the petitioners- original defendants to contend that proper issues are not framed. Therefore, it is requested to dismiss the present Special Civil Application. 6. Heard learned advocate appearing on behalf of the respective parties. SCA/132/6508 8/11 JUDGMENT 7. At the outset, as stated hereinabove, the suit has been instituted by the respondent-original plaintiff for recovery of an amount of Rs.5,29,725/- for supply of goods to the petitioners- original defendants. Therefore, burden to prove that the goods have been sold to and received by the petitioners–original defendants and what amount is due and payable by the petitioners- original defendants to the respondent- original plaintiff, is upon the respondent-original plaintiff and at the initial stage, the petitioners- original defendants are not required to prove whether the goods have been received by them or not. It is the cardinal principle of the Evidence Act that the person who makes certain allegation, has to prove the allegation and prove his case. In the present case, when the respondent-original plaintiff is alleging that the goods have been sold to the petitioners- original defendants and is alleging that an amount of Rs. 5,29,725/- is due and payable by the petitioners- original defendants to the respondent- original plaintiff, the SCA/132/6508 9/11 JUDGMENT burden to prove the same is upon the respondent- original plaintiff and the said burden cannot be cast upon the petitioners- original defendants. Under the circumstances, the learned trial Court has materially erred in framing the issues casting the burden upon the petitioners-original defendants to prove that the goods have been received; acknowledgment were given to the plaintiff; whether the original defendants prove that they have paid an amount of specific transaction to the original plaintiff; whether the original defendants prove that the account and statements the plaintiffs are correct and bonafide and/or whether the defendants prove that they are not liable to pay the interest. Under the circumstances, the impugned order dated 19.09.2008 passed by the learned trial Court deserves to be quashed and set aside and the following issues are framed. (1)Whether the plaintiff proves that the defendant No. 1 firm has placed goods order at Ahmedabad as alleged? (2)Whether the plaintiff proves that the goods SCA/132/6508 10/11 JUDGMENT were delivered to defendant No.1 firm Ahmedabad to Kallam, Maharashtra and the same was received by the defendant No.1 firm? (3)Whether the plaintiff proves the suit claim of Rs. 5,29,725/- as alleged in the plaint? (4)Whether the plaintiff proves that this Court has jurisdiction to try the suit ? (5)Whether the defendants prove that the cheque in question was issued and deposited with the plaintiff in the year 2000 as security and not for discharge of any debt of Rs. 4,17,235/-? (6)Whether the defendants prove that cheque issued on 06.08.2003 was blank at the time of drawing and has effect on acknowledgment of the debt? (7)Whether defendants prove that they are having relation as agent with the plaintiff? (8)Whether the plaintiff proves that they are entitled to the interest as prayed for in the plaint? (9) Whether the defendants prove that the suit SCA/132/6508 11/11 JUDGMENT is barred by law of limitation ? (10) What order and decree? 8. For the reasons stated above, the petition succeeds. The impugned orders is quashed and set aside. The aforesaid issues are framed in place of the issues framed at Exh. 57 in the aforesaid suit. Rule is made absolute. There shall be no order as to costs. (M.R. SHAH, J.) niru*