Smita Raghunandan Nikam vs Shamrao Dadasaheb Chavan
2018 Latest Caselaw 268 Bom

Dixit
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION

                                WRIT PETITION NO.4452 OF 2016

        Smita Raghunandan Nikam,                                      ]
        Age 51 years, Occ. Doctor,                                    ]
        R/of 1/3 Amol Apartment,                                      ]
        Bhandar Ali, Jayram Sadashiv Road,                            ] .... Petitioner /
        Opp. Prabhat Cinema, Thane (E) - 400 601.                     ] (Org. Plaintiff)
                     Versus
        Shamrao Dadasaheb Chavan,                                     ]
        Age : 70 years, Occ. Retired,                                 ]
        R/of Panchavati Co-op. Housing Society Ltd.,                  ]
        Opp. Police Center, Marol Maroshi,                            ] .... Respondent /
        Andheri (E), Mumbai - 400 059.                                ] (Org. Defendant)


        Mr. Shivaji A. Masal for the Petitioner.
        Mr. Anand S. Kulkarni for the Respondent.


                                  CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                                  DATE          : 10 TH JANUARY 2018.


        ORAL JUDGMENT :

1. Rule. Rule is made returnable forthwith. Heard finally, at the stage

of admission itself, by consent of Mr. Masal, learned counsel for the

Petitioner, and Mr. Kulkarni, learned counsel for the Respondent.

2. By this Petition, filed under Article 227 of the Constitution of India,

the Petitioner is challenging the order dated 11 th February 2016 passed

by the Court of Civil Judge, Junior Division, Khandala, below "Exhibit-

29" in Regular Civil Suit No.148 of 2013. The application at "Exhibit-29"

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was filed by the Respondent-Defendant seeking framing of additional

issue on the count that, though a specific pleading was made in the

written statement that the suit property was nominally purchased in the

name of 'Snehalata Shamrao Chavan', Respondent, in fact, is the real

owner of the suit property. However, an issue to that effect was not

framed and hence, for resolving the controversy in the Suit completely

and finally, the framing of additional issue to that effect is necessary.

3. The said application was opposed by learned counsel for the

Petitioner on the count that, the evidence of the Petitioner-Plaintiff is

already recorded and the pursis of closing of evidence is also filed. The

matter was fixed for recording the evidence of the Respondent-

Defendant and as at this belated stage, the application was filed for

framing of additional issue, it needs to be rejected.

4. The learned Trial Court, vide its impugned order, held that, in view

of the pleadings in the written statement, the additional issue is required

to be framed and, accordingly, directed the framing of "Additional Issue

No.3A" to the effect that, 'whether the Defendant proves that the suit

property was purchased nominally in the name of Snehalata Shyamrao

Chavan and he is the real owner of the suit property?'

5. While challenging this order of the Trial Court, the only submission

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advanced by learned counsel for the Petitioner is that, as the evidence of

the Petitioner-Plaintiff is already closed and at this stage, if the

additional issue is framed, the Petitioner may not get an opportunity to

lead evidence in respect of this additional issue.

6. This grievance of the Petitioner can be solved, if the Petitioner is

given an opportunity to lead additional evidence in respect of this

additional issue, if required.

7. Considering the settled position of law that, "issue can be framed

or re-framed at any stage of the proceedings, even at the time of

Judgment" and, especially, in the present case, as there was already

pleading on record in respect of the additional issue, there is no question

of any illegality committed by the Trial Court in allowing the

Respondent's application and framing additional issue. The Writ Petition,

therefore, deserves to be dismissed. The Petitioner is, however, given a

liberty to lead additional evidence, if required, which will be restricted

only with respect to the "Additional Issue No.3A".

8. The Writ Petition is disposed of and Rule is made absolute in above

terms.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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