1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6608 OF 2010 Sachin Subhash Agrawal Petitioner Versus Nitinkumar Subhash Agrawal and others Respondents Mr. D.P.Palodkar, advocate for petitioners. Mr. P.F.Patni, advocate for Respondents No.1 & 2. Mr.J.V.Deshpande, advocate for Respondent No.4. Mr.S.K.Barlota, advocate for Respondent No.6. CORAM: R.M.BORDE, J. DATE : 13 th October, 2010. P.C.: 1 Petitioner – original plaintiff is raising challenge to the interlocutory order passed by the trial Court thereby recasting the issues as well as permitting defendants no.1 & 2 to cross examine the plaintiff, on consideration of application tendered by defendants at Exhibit-166 in Regular Civil Suit No.589 of 2008. 2 Plaintiff-petitioner presented suit claiming partition and separate possession. It is not disputed that parties have led evidence in the matter. The trial Court, after completion of recording of evidence and after hearing arguments, directed to 2 recast issues, as, according to the trial Court, issues framed earlier were not in consonance with pleadings of the parties. The trial Court has also granted liberty to the parties to lead further evidence so as to avoid causing of prejudice to them. Plaintiff- petitioner, however, chose not to tender further evidence. Defendants, on the other hand, presented application requesting the Court to permit them to cross examine plaintiff. The application was considered by the trial Court favourably and defendants no.1 and 2 were allowed to cross examine P.W.1 only on issues numbers 2 and 4, which are recast by the Court on 27.04.2010. 3 According to petitioner – original plaintiff, there was no reason for the trial Court to recast the issues. It is also contended that further permitting defendants to cross examine plaintiff is also erroneous. It is contended that defendants have liberty to lead further evidence if they want to and after leading such evidence, if occasion arises, they may be granted liberty to cross examine the plaintiff. 4 The course suggested by plaintiff is not contemplated by any provisions of Civil Procedure Code. It is for the defendants to decide as to whether they want to lead further evidence or not. Defendants, acting upon the liberty granted by the trial Court, deemed it appropriate to cross examine the plaintiff and tendered such request to the Court. In the facts and circumstances of this 3 case, I am of the view that the order passed by trial Court at interlocutory stage cannot be said to be erroneous or in excess of the jurisdiction. The provisions of Civil Procedure Code i.e. Order XIV Rule 5 invest powers with the Court to amend or strike out any of the issues at any stage of the proceedings. The order passed by the trial Court, therefore, cannot be said to be in excess of the jurisdiction or without jurisdiction. In exercise of the powers conferred under Article 227 of the Constitution, no interference is called for at the interlocutory stage of the proceedings. Petition is devoid of substance. 5 Writ Petition stands rejected. (R.M.BORDE) JUDGE ******* adb/wp660810