Gujarat High Court
Mukeshbhai Shankerbhai ... vs Janakbhai Alias Jaydevbhai ... on 11 February, 2021
Bench: Ashokkumar C. Joshi
C/SCA/17876/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17876 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
MUKESHBHAI SHANKERBHAI BHARDIWALA
Versus
JANAKBHAI ALIAS JAYDEVBHAI SHANKERBHAI BHARDIWALA
==========================================================
Appearance:
MS SRUSHTI A THULA(5014) for the Petitioner(s) No. 1
MR MANAN A SHAH(5412) for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 11/02/2021
ORAL JUDGMENT
1. The Petitioner (Original Defendant in the Civil Suit) has filed this
Petition under Article 227 of the Constitution of India for the prayer;
"(A) Your Lordship may be pleased to issue a writ of mandamus /
certiorari or any other writ as it may please your Lordships quashing and
setting aside the order dated 11.10.2018 passed by the learned 14th Additional
Senior Civil Judge, Surat in Special Civil Suit No. 318 of 2011, whereby the
learned Judge has rejected application under Exh. 122 preferred by the
Petitioners - original Defendant to add and amend the Issues framed.
(B) Pending admission hearing and final disposal of the petition, Your
Lordships may be pleased to stay the execution, operation and implementation
of the order dated 1.10.2018 passed by the learned 14th Additional Senior
C/SCA/17876/2018 JUDGMENT
Civil Judge, Surat in Special Civil Suit No. 318 of 2011, whereby the learned
Judge has rejected application under Exhibit 122 preferred by the Petitioners -
original Defendant to add the proposed issues as per C.P.C order 14.
(C) Pending admission hearing and final disposal of the petition, Your
Lordships may be pleased to stay the proceedings in Special Civil Suit No.318
of 2011.
(D) Such other and further relief/s as may be deem just and proper may
please be granted in the interest of justice."
2. Heard Ms. Shrushti A. Thula for the Petitioner and learned Advocate
Mr. Manan A. Shah for the Respondent at length through video conference.
3. During the course of hearing, a very short issue is raised with regard to
the framing of the Additional Issue Nos. (1) to (5) framed in Paragraph 8 of
Special Civil Suit No. 318 of 2011, on the basis of the pleadings of the parties
made in the Plaint as well as in the Written Statement.
4. During the course of arguments, the learned Advocates for both the
parties have fairly conceded that without entering into any detailed merits of
the case, it appears that the burden is cast normally on the plaintiff who comes
with case. Simultaneously, if anything is resisted, denied or disputed or the
controversy is raised by the defendant, in that case, the defendant is required to
prove its case on the basis of written statement and therefore it appears that in
addition to the issues framed by the learned trial Court on 8.1.2016 at Exh.62,
the Additional Issue Nos. (1) to (5) framed in Paragraph No. 8 at Page No. 2 of
Special Civil Suit No. 318 of 2011, which are proposed by the Original
Defendant be added and the learned trial court shall re frame the said
Additional Five Issues after affording opportunity to both the sides to adduce
their evidence in accordance with law to arrive at a final adjudication of the
Suit.
Further it is made clear that both the sides have fairly conceded that suit
C/SCA/17876/2018 JUDGMENT
is on the verge of conclusion since both the sides have concluded their
evidence, and therefore, learned trial court is required to focus only on the
Additional Issue Nos. (1) to (5) which are proposed by the original defendant
in Paragraph 8 at Page No.2 of Special Civil Suit No. 318 of 2011.
5. The petition stands disposed of in above terms by setting aside the order
passed by the learned Trial Court in rejecting the recasting of issues (the
impugned order). The prayer in terms of para 8(A) is granted. The learned
trial court shall re frame the additional five issue Nos. (1) to (5) which are
proposed by the original defendant in Paragraph 8 at Page No.2 of Special Civil
Suit No. 318 of 2011, at the time of adjudication of the Suit in accordance with
law without being influenced by the order passed by this Court in the present
petition since the Suit touches the year 2011 and shall decide the Suit
preferably within a period of three months from the date of receipt of the order
of this Court.
Rule is made absolute to the aforesaid extent.
(A. C. JOSHI,J)
J.N.W
