SCA/12501/2008 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12501 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 ? ========================================================= MILTONS PRIVATE LIMITED - Petitioner(s) Versus THE NEW INDIA ASSURANCE CO LTD - Respondent(s) ========================================================= Appearance : MR IH SYED for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MR VIBHUTI NANAVATI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 24/12/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner – original plaintiff has prayed for appropriate writ, order and/or directions quashing and setting aside the impugned order SCA/12501/2008 2/3 JUDGMENT dtd.17/4/2008 passed by the learned Principal Senior Civil Judge, Gandhidham-Kutch below application Ex.20 in Special Civil Suit No. 10 of 2005, by which the learned trial court has dismissed the application submitted by the petitioner to recast the issue Nos.1 and 3. 2. Heard Mr.I.H. Saiyed, learned advocate appearing on behalf of the petitioner and Mr.Nanavati, learned advocate appearing on behalf of the respondent. 3. It appears from the record that the petitioner had taken Fire Declaration Policy and as the fire had taken place, claim was submitted by the petitioner, which was repudiated and therefore, the petitioner had instituted the aforesaid suit for the compensation / damages. It was the case on behalf of the Insurance Company that the fire was man-made and/or for any reason due to the negligence on the part of the petitioner – plaintiff and therefore, they repudiated the claim. In the said suit, the learned trial court framed the issues at Ex.15 by which the burden to prove that the fire was not man-made, has been cast upon the petitioner – plaintiff and the petitioner – plaintiff is directed to prove that whether the fire was accidental or not. When the defendant - Insurance Company is ascertaining and repudiating the claim on the assumption that the fire was man-made and/or for any other reason and the same was not accidental, the burden to prove the same is upon the said defendant and the burden cannot be cast upon the petitioner plaintiff. Under the circumstances, the impugned order passed by the learned trial court deserves to be quashed and set aside and the issue Nos.1 and 3 are recast as under:- SCA/12501/2008 3/3 JUDGMENT “Issue No.1:- Whether the defendant proves that the fire caused was accidental fire ? Issue No.3:- Whether the plaintiff proves that they have suffered heavy damage to its properties due to the fire?" 4. With these, present Special Civil Application is allowed. Impugned order is quashed and set aside. Rule is made absolute accordingly. Direct Service is permitted. [M.R. SHAH, J.] rafik