Bombay High Court
Sanjay Vijaykumar Darakh vs Mohammed Shukur Sk Chand on 14 March, 2016
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2855 OF 2016
Sanjay Vijaykumar Darakh PETITIONER
Age - 39 years, Occ - Business
R/o Bunglow No. 25, Cantonment,
Aurangabad
VERSUS
Mohammed Shukur Sk. Chand RESPONDENT
Age - 52 years, Occ - Business,
R/o Kotwalpura, Panchakki Road
Aurangabad
ig .......
Mr. Shaikh Mujtaba Gulam Mustafa, Advocate for petitioner
Mr. Mobin H. Shaikh, Advocate for the respondent
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 14th MARCH, 2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally with
consent of learned advocates for the parties.
2. The writ petition is by defendant - tenant, who purports to
contend that framing of additional issues during hearing of the
suit, may cause prejudice to the defendant's case, since these
issues had not been framed earlier, neither it can be said that it
was in contemplation. As such, the defendant had not cross
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examined along the lines of said issues.
3. It appears, there is no dispute about that the suit had
reached the stage of hearing and it is after the examination and
cross-examination of the parties were over, these issues have
been framed.
4. Mr. Mobin Shaikh, learned advocate appearing for the
respondent resists the request under the writ petition submitting
that as a matter of fact in the examination in chief and even in
the pleadings, there are sufficient indications about the issues as
are framed, would arise and would be, inter alia, the grounds
upon which eviction is sought.
5. Mr. Mobin Shaikh relies on a judgment in case of "M/s
Sharddha Associates & Another V. St. Patrick's Town Co-operative Housing
Society Ltd., and Others" reported in 2003 (1) ALL MR 674 and submits
that a party has no right to insist upon for being heard in the
matter of framing or re-framing of issues by the court and it is
obligation of the court and further that issues can be modified at
any stage of the suit under Rule 5, Order XIV of the Civil
Procedure Code. Perusal of the citation, however, reveals that it
was a case decided on different set of facts.
6. Mr. Mustafa, learned advocate appearing for the petitioner,
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however, submits that having regard to the stage at which the
matter has reached, an opportunity be given to the defendant to
give evidence in respect of the issues so framed.
7. Having regard to that the added issues have been framed
during hearing of the matter and defendant's request to adduce
evidence in respect of those issues, I deem it appropriate and it
would be in the interest of justice that such opportunity be given
to the parties.
8. In view of the same, the trial court may allow the parties
to adduce evidence in respect of the issues so framed on 2 nd
February, 2016. However, said exercise be done by the parties as
expeditiously as possible, preferably within a period of four
weeks from the date of receipt of writ of this order. The parties
be heard accordingly and suit be proceeded with and decided
expeditiously.
9. Writ petition, as such, is disposed of with aforesaid
observations / directions. Rule stands discharged.
[SUNIL P. DESHMUKH, J.]
drp/wp2855-16
