M/S Loya Traders Thr. Its Prop., ... vs Ankita Trading Company Thr. Its ...
2017 Latest Caselaw 9273 Bom

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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

==================================================
              Smt. S.W. Deshpande, Advocate for the petitioner
              Shri M.R. Gadhia, Advocate for the respondent
==================================================
              
                                                              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