1. Challenge is made to the order passed under Application below Exh. 86 on 4th March 2011.
2. On considering the rival contentions of the parties the issues have been case in Regular Civil Suit No. 10 of 2006 by the suit on 17th April 2010 (exh. 68), 2.1 An application has been preferred by the plaintiff to recast all the issues by suggesting various issues in an application preferred vide Exh. 86 on 13th December 2010. This trial Court after hearing both the sides rejected the said application on 2nd August 2005. It was of the opinion that issue No. 2 is of inclusive of the proposed issues which are not to be framed separately and secondly, recasting the issues proposed would amount to put negative burden on the defendants which under the law is found impermissible.
3. Learned advocate Mr. Shah urges this Court that Order 14 Rule 1 of Code requires that each material proposition affirmed by one party and denied by other party shall form subject of distinct issue. He further urges that the defence of cancellation of sale deed put forth by respondent Nos. 1,2 and 3 is not being reflected in the issues framed by the Court and therefore the possibility cannot be ruled out of such a stage where there would be an impediment in cross-examination on account of non-framing of such a issue.
4. This petition is under Article 227 of the Constitution of India. In the order impugned this Court finds no error nor perversity and at the same time there could be no dispute to the proposition of law sought to be canvassed by learned advocate. It is also a legal proposition that the issue can be added or struck or amended at any stage of trial. The proposed issues which are sought to be added by the petitioner herein at this stages denied by the trial Court for the reasons given in the impugned order which at this stage are not found necessary. However, in the event of any situation arises necessitating the additions of the issues the Court on its own may choose to add to the issues framed presently, or either of the parties also will be liberty to make such a request at an appropriate stage.
5. This petition stands disposed of.
(Ms.
Sonia Gokani,J.) mary// Top