In so far as the impugned order dated 10th July 2018 passed by the learned trial Judge rejecting the application for recast of the issue no. 1 is concerned, it is not in dispute that the issues were already framed by the learned trial Judge on 15th September 2012. After framing of five issues including the said issue no. 1 which was sought to be recast by the petitioner, the petitioner had already filed an affidavit of evidence as far back as on 2nd August 2012. The said application for recast of issue no. 1 was filed after rejection of the application filed by the petitioner for seeking amendment of the plaint i.e. by an order dated 25th April 2018. Both the parties have already led evidence based on the issues framed by both the parties. The matter is now placed for final argument. Learned counsel for the respondent nos. 1 to 5 submits that he has no objection if the issue no. 1 is partly modified in so far as the issue of possession is concerned. Statement made by the learned counsel for the respondent nos. 1 to 5 is accepted.
18. A perusal of the order passed by the learned trial Judge clearly indicates that the said application below Exhibit-77 has been rejected by a reasoned order. The suit was already posted for final argument and has been adjourned from time to time on one or the other grounds. The learned trial Judge has also considered the pleadings filed by both the parties in this regard and has held that the said issue no. 1 was framed after considering the pleadings. The petitioner never raised any objection when the said issue no. 1 was framed by the trial Court as far back as on 15th September 2012 till filing of an application on 5th June 2018.
19. In so far as the submission of the learned counsel for the petitioner that the issue could be recast at any stage prior to the decree passed by the learned trial Judge under Order XIV Rule 5 is concerned, in my view, since the issue was framed properly after considering the pleadings filed by both the parties which was not challenged by the petitioner for last 6 years, the petitioner could not be allowed to file such application and after the order passed by the learned trial Judge placing the matter on board for final argument. The entire evidence is already led by both the parties based on the original issue no. 1. In these circumstances, no interference is warranted with the orders passed by the learned trial Judge in this petition under Article 227 of the Constitution of India.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 8717 of 2018
Decided On: 10.09.2018
Archana Ashok Amburle Vs. Arpana Shankar Dudham and Ors.
Hon'ble Judges/Coram:
R.D. Dhanuka, J.
Citation: 2019(2) MHLJ 67
