Kamlesh S/O Dharamdas Punekar And ... vs Chandrashekhar S/O Sukhmandas ...
2022 Latest Caselaw 13067 Bom

                                               1                                  28wp8087.22

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               NAGPUR BENCH : NAGPUR
                              WRIT PETITION NO. 8087/2022
  (Kamlesh s/o. Dharamdas Punekar & anr. Vs. Chandrashekhar S/o. Sukhmandas Punekar & ors.)

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Office Notes, Office Memoranda of Coram,                            Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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                              Mr. D. N. Dani, Advocate for petitioners.

                                        CORAM : VINAY JOSHI, J.

DATED : 15/12/2022.

Heard.

2. The petitioners (plaintiffs) have principally filed a suit for setting aside the partition deed on the premise of fraud along with consequential relief. In the said suit, partition led evidence and when the matter was reserved for judgment, defendants have applied for permission to lead additional evidence. This Court has permitted the same in writ petition and accordingly, additional evidence was led. Thereafter, on the basis of some documents, defendants have applied to the Trial Court for disposal of suit in terms of Order XII Rule 6 of the Code of Civil Procedure ('CPC') which was rejected. The defendants have challenged the said order in this Court, but no relief was granted. Thereafter, defendants have sought an amendment to written statement which was allowed. The Trial Court framed two additional issues on the basis of amendment. At this juncture, petitioners have applied for striking additional issues which was rejected vide impugned order dated 19.10.2022. The 2 28wp8087.22

petitioners have also challenged the order of the Trial Court dated 11.07.2022, by which amendment was allowed at belated stage.

3. It is petitioners' contention that when the matter was virtually closed for judgment, it was reverted to the limited extend of leading additional evidence and thus, at such belated stage, amendment to pleading is not permissible. It is argued that proposed amendment was not relevant for the purpose of deciding the real controversy and it would change the very nature and complexion of the suit. It is submitted that the Trial Court erred in casting onus on plaintiffs while framing additional issue No. 4-A. It is submitted that the proposed issue No. 4-B is also unnecessary as it does not relate to the original controversy. It is submitted that though the Trial Court has put burden on defendants, however the onus may shift on plaintiffs during evidence. He has also submitted that issue No. 4-B is not required as already defendants' application under Order XII Rule 6 of the CPC was rejected.

4. Issue notice to the respondents returnable after four weeks.

5. In the meantime, there shall be interim relief in terms of prayer clause (iii) of the petition. Digitally signed by JITENDRA JITENDRA BHARAT BHARAT GOHANE GOHANE Date:

2022.12.19 19:03:32 +0530 (VINAY JOSHI, J.) Gohane