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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
Writ Petition No. 6701/2017
1] M/s Loya Traders,
Through Its Proprietor,
Shri Rajendra Chhaganlal Loya
Aged about 60 years, Occ. Business,
2] Smt. Sushma W/o Rajendra Loya,
Aged 58 years, Occ. Household,
3] Paresh S/o Rajendra Loya,
Aged 32 years, Occ. Business,
4] Parag S/o Rajendra Loya,
Aged 28 years, Occ. Business,
All R/o Mohta Plots, Near SBI,
Piparia, Dist. Hosangabad (M.P) ..... PETITIONERS
... V E R S U S...
1] Ankita Trading Company,
through Its Proprietor- Brijgopal
S/o Meghraj Rathi, Aged 56 years,
Occ. Business, R/o Sitabuldi,
Tekdi Road, Nagpur ..... RESPONDENT
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Smt. S.W. Deshpande, Advocate for the petitioner
Shri M.R. Gadhia, Advocate for the respondent
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Coram: Z.A.
HAQ, J.
Date : 4
December, 2017
th
Oral Judgment:-
Heard.
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Rule. Rule made returnable forthwith.
2] The petitioners(original defendants) have challenged the
order passed by the trial Court by which the application (Exh. 29) is
disposed by accepting the prayer made in the application partly and
adding one issue, on the point of rate of toor dal, and rejecting the
prayer of the defendants for recasting the other issues.
3] The plaintiff has filed the civil suit for recovery of the amount
due against the defendants from business transactions. The defendants
are opposing the claim of the plaintiff. As the trial has progressed, the
issues are framed. The defendants filed the application (Exh. 29)
praying for recasting Issue No. 1 and Issue No. 5 and framing one
additional issue.
4] By the impugned order, the learned trial Judge has framed
one additional issue, however, has rejected the prayer for recasting of
other issues and for framing the additional Issue No. 5A as shown in the
application (Exh. 29).
5] After hearing the learned advocates for the respective parties
and examining the copy of the plaint, the written statement and the
proposed Issue No. 5A, I find that this issue should have been framed as
the issue arises out of the pleadings of the parties and the defendants
want to discharge the burden of proving their case on the point of
placing of oral order by the defendant no. 2.
6] The order rejecting the prayer of the defendants for recasting
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other issue is rightly rejected by the learned trial Judge.
In view of the above, the following order is passed:-
O R D E R
1] The prayer of the defendants for framing additional Issue No. 5A is allowed.
2] The prayer of the defendants for recasting other issues are rejected.
3] The impugned order is modified in the above terms.
The writ petition is partly allowed. In the circumstances, the parties to bear their own costs.
JUDGE A n s a r i ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 00:18:36 :::