1. Challenge here is made to the order of the trial court dated 10th April 2012 whereby the application preferred by the petitioner under Order 14 Rule 5 sub rule (2) for framing an additional issue, is rejected.
2. According to the present petitioner, (original defendant) the respondent preferred Civil Suit No. 219 of 2003 seeking recovery of rent as also for possession of rented premises, and the trial Court framed the issues on the basis of rival contentions of the parties.
3. An application was tendered vide Exh. 37 under Order 14 Rule 5 sub rule (2) of Code of Civil Procedure interalia requesting the Court to add the issue in respect of greater hardship as provided under 13(1)(g) of the Bombay Rent Act.
4. The trial Court, having found that this proposed issue already gets included in the issues framed by the Court, (vide Exh. 14) rejected the Application Exh. 37 on 10th April 2012 and therefore this petition under Article 227 of the Constitution.
5. It is urged by learned advocate for the petitioner that if in case issue No. 2 gets proved by the respondent plaintiff, question of greater hardship would arise. Nowhere in the prayer the original plaintiff has sought for decree on this ground of hardship.
6. On having examined the materials on record and on considering the order impugned, this Court is of the opinion that as rightly pointed out by the learned judge in its order impugned, the second issue is inclusive of the proposed issue suggested by the present petitioner.
7. The respondent original-plaintiff is required to discharge the onus of proving issue No. 2. The question of considering greater hardship would arise thereafter and that being requirement of law trial court is right in indicating that the issue proposed is already included in the issue No. 2, and therefore, no addition of the issue is necessary under Order 14 Rule 5 Sub Rule 2.
8. This petition is not to be entertained. Needless to say as a parting note that in the event of Court finding itself constrained by non-existence of such issue and in the event of onus being discharged by the plaintiff/ respondent of proving the issue No. 2, the trial Court is empowered to add the same at any stage, on its own, or at the behest of either side. With this note, this petition stands disposed of.
(Ms.
Sonia Gokani,J.) mary// Top