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Prabiyotsing Vs. Shrivallabh Ramgopal Ramchandraji Darak - (High Court of Bombay) (16 Feb 2021)

If the falsity, forgery, fabrication of documents is pleaded then a proper issue in respect thereof needs to be framed



Present is a petition filed under Article 227 of the Constitution of India 1950, by the Original Defendant in Civil Suit assailing the order passed by the trial Court allowing the application by the Original Plaintiff Respondent for framing the additional issue.

The Defendant has denied the relation, transaction, supply, delivery, credit/debit ledger, the invoices, delivery challans, documents as well as the amount claimed. There is no admission of any fact in the case at hand. Even otherwise, since the allegation of falsity, forgery and fabrication of documents are made by the Defendant, the burden of proving that would be on the Defendant and cannot be on the Plaintiff.

There is no doubt that a person who attacks a transaction as sham, bogus or fictitious, must prove the same. But, first, the Plaintiff has to prove whether the transaction in question is bonafide and genuine. It is only when this is done, that the Respondent has to dislodge it by proving that it is a sham, bogus and fictitious transaction. When a plea is taken in the written statement but an issue is not framed, the parties would be deprived of leading evidence. Also, if the falsity, forgery, fabrication of documents is pleaded then a proper issue in respect thereof needs to be framed.

In the case at hand, admittedly, the additional issue has been framed only on the basis of the pleadings and therefore, the interlocutory order of the Trial Court cannot be faulted. There is no jurisdictional error on the part of the Trial Judge nor any illegality or perversity in the impugned order. Entertaining the prayers of the petitioner would result in interference of the trial. The Impugned Order is an interlocutory order. All the contentions/issues can always be asserted before the Trial Court. Petition dismissed.


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