1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5540 OF 2008 The State of Maharashtra and anr .. Petitioners -versus Shri Popat M. Rathod and anr .. Respondents. Mr. A. P. Vanarse, AGP for the petitioners. Mr. Anil Y. Sakhare, Senior Counsel with Mr. M. U. Pandey, for respondent No.l. CORAM: A.S. OKA, J. DATED:25 th September, 2009. P.C. 1. Heard learned AGP for the petitioners and learned Senior Counsel appearing for the first respondent. First respondent is the original plaintiff. Learned Senior counsel appearing for the first respondent invited my attention to the issues framed by the Trial Court. On instructions he stated that the first respondent-original plaintiff will initially adduce evidence on issue No.1. He stated that the first respondent has reserved his right to lead evidence in rebuttal on issue Nos 2 to 5. He states that the lst respondent will adduce his evidence on the said issues after the evidence is adduced by first and second 2 defendants as the burden to prove said issue Nos 2 to 5 is on the first and second defendants. The statements made by the learned Senior Counsel appearing for the first respondent (Original plaintiff) on instructions are accepted. In view of the said statements, the impugned order will have to be quashed and set aside. Accordingly the petition is disposed of by passing following order. ORDER. I) The statements of the learned Senior Counsel made on instructions from first respondent which are recorded above are accepted II) In view of the said statements the impugned order is quashed and set aside. III)The Trial Court will now proceed in accordance with the law laid down in the case of Bhagirath Shankar Somani and anr - vs- Ramesh Ramchandra Daulal and anr (2007 (5) Mh. L. J 508). IV)All the contententions raised by the parties on merits of the suit are kept open. V) It is obvious that after first and second defendants adduce evidence, it will be open for first respondent (original plaintiff) to lead evidence in rebuttal on issue Nos 2 to 5. (A.S. OKA, J)