The short controversy is in respect of the order passed by learned District Judge dated 15/12/2011 in Regular Civil Suit no. 4/2007, whereby the Court framed the issues after hearing both sides on the proposed issue.
The petitioner herein is the original defendant, who challenges the said order especially questioning the first issue since onus is shifted on the defendant to prove the cancellation of membership of the plaintiff in consonance with the rules and law of the Trust.
On hearing both the sides and on examining the material on record, in the opinion of this Court, order requires interference. The plaintiff preferred proposed issues and the Court after bipartite hearing, accepted the version of plaintiff respondent from the averments of plaint and relief. It is clear that the plaintiff is required to prove its case and such onus can not be shifted at the initial stage on the defendant as has been done by framing the first issue.
Therefore, the order impugned having jurisdictional error required to be quashed.
At the request of both sides, the issue is not being dilated further keeping in view of the forthcoming trial. However, issue no. 1 shall need to be recast as follows:
"Whether the plaintiff proved that its membership of the club is cancelled by the defendant in breach of provisions of laws and the Rules of the Trust?"
In the aforementioned terms, petition stands disposed of. Direct service is permitted.
(MS.
SONIA GOKANI, J) *asma Top