KANAKBHAI VALJIBHAI KATHIRIYA Vs. MUKESHBHAI VAJUBHAI GONDALIYA

JUDGEMENT

(1.) Heard learned Advocate Mr. Pratik Jasani on behalf of the applicant and learned Advocate Mr. Vimal Patel on behalf of learned Advocate Mr. Suren B. Patel for the respondent.

(2.) By way of this application, the applicant challenges an order dtd. 16/1/2018 passed by the learned Principal Senior Civil Judge, Gondal under Exh. 47 in Special Civil Suit No. 44 of 2008 whereby the application preferred by the present applicant- original plaintiff for a direction to the defendant to lead evidence, instead of the plaintiff has been rejected.

(3.) Learned Advocate Mr. Jasani on behalf of the applicant would submit that while the plaintiff had interalia prayed for a declaration, more particularly to be declared as a partner of the partnership firm, at the time of framing the issues, the learned Trial Court had framed issues No. 4 and 5, which interalia required the defendant to prove that the plaintiff after taking some amount had withdrawn from the partnership and to prove that the partnership firm named M/s Parth aluminum was dissolved. Learned Advocate would submit that reading issues no. 1, 2 and 3 i.e which are required to be proved by the plaintiff and issues no. 4 and 5 which have been referred to hereinabove which are required to be proved by the defendant, makes it abundantly clear that in case the respondent were directed to lead evidence at the first instance and if the defendant were to prove the said issues no. 4 and 5 then the case of the plaintiff would be over and there would be nothing left for the plaintiff to prove. It was according to learned Advocate Mr. Jasani on account of such peculiar facts that the present applicant had moved an application Exh. 47. Learned Advocate Mr. Jasani would also draw the attention of this Court to certain factual errors in the order passed by the learned Trial Court, which according to learned Advocate Mr. Jasani, has the propensity of vitiating the entire order. According to learned Advocate Mr. Jasani, while the learned Trial Court had interalia observed that the defendants are not admitting that the plaintiff was a partner of the firm, was not a correct finding more particularly since the case of the defendant all along had been that the partnership firm existed and had later on been dissolved. Learned Advocate would further submit that having regard to such a factually incorrect finding by the learned Trial Court, this Court may interfere in the impugned order.