: 1 : 657-11-cra=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 657 OF 2011 IN S.C. SUIT NO. 1452 OF 2002 Dhirajlal Raishi Chheda .. Applicant v/s. Mukesh Raishi Chheda .. Respondent ......... Mr. Tripathi i/b M/s. Sarwankar & Co. the applicant Mr. J.G. Shukla for respondent ......... CORAM : R.Y.GANOO, J DATE : 5th OCTOBER,2011. P.C. : 1. Rule. Rule made returnable forthwith. Learned advocate Mr. Shukla waives service on behalf of the respondent. By consent, petition is taken up for hearing. 2. The applicant is a plaintiff in S.C. Suit No.1452 of 2002 filed in the City Civil Court at Mumbai. The applicant has by this application challenged the order dated 28th January, 2011, by which the suit is dismissed. The text of the order is as follows. : 2 : 657-11-cra=.sxw “Plaintiff failed to submit evidence affidavit though specific directions were given to the plaintiff. The Court observed that the plaintiff and his advocate Shri S.R. Gupta are ignoring specific directions of the Court merely on the ground that there is application for recasting of issues. This point was already considered by the court on previous date and case was adjourned for evidence affidavit of plaintiff. Under these circumstances there is no alternative but to dismiss the suit for want of prosecution. Reasons separately recorded on application of recasting of issues.” 3. My attention was drawn by the learned advocate for the applicant to the earlier Roznama, where the learned Judge had fixed a programme for framing of issues. It is required to be noted that the learned Judge had fixed the matter for framing of issues on 6th December, 2006. As the applicant reached the Court, he noticed that the issues are already framed by the learned Judge on 4th December, 2006. As per Roznama dated 10th November, 2010, the parties were to submit the list of witnesses on 13rd December, 2010 and the suit was to go ahead. The matter was adjourned to 1st December,2010 and ultimately the matter was adjourned on 20th January, 2010. On that day, the applicant had submitted that list of : 3 : 657-11-cra=.sxw witnesses which was marked as Exh.4. The applicant submitted application for recasting of issues, copy of which was supplied to the respondent. The said application was marked as Exh.10 and time was granted for reply and hearing of the said application at Exh.10. Earlier it was ordered that the plaintiff will have to file evidence affidavit and documents, if any, on 28th January, 2011. 4. When the suit appeared on board on 28th January, 2011, the learned Judge of the City Civil Court decided the application dated 20th January, 2011 for recasting of issues and the said application was rejected. The Court is informed that the applicant has challenged the said order dated 20th January, 2011 by a separate petition. I do not wish to comment upon the order dated 28th January, 2011 as the said petition is pending. 5. I now turn to the order dated 28th January, 2011 by which the suit came to be dismissed. A perusal of the said order dated 28th January, 2011 goes to indicate that the learned Judge had kept in his mind the earlier order by which the applicant was directed to file his evidence affidavit on 28th January, 2011. No doubt, the applicant did not file his evidence affidavit on 28th January, 2011. This must be on account of the applicant : 4 : 657-11-cra=.sxw expecting orders on his application for recasting of issues. The learned Judge has found fault with the applicant in not filing the evidence affidavit on 28th January, 2011. 6. It must be noted that the learned Judge forgot to note the well settled principle that a party to the suit can file evidence affidavit on the basis of issues which are framed and, therefore, till such time, application for recasting of issues was not decided that is to say till such time a formal order on the said application was not passed, the applicant was not knowing whether the application for recasting of issues will be granted or rejected. The picture was clear only on 28th January, 2011 that the application for recasting of issues was rejected. 7. Once application for recasting of issues was rejected, the applicant got the hint that he has to prepare the evidence affidavit on the basis of the issues which were already framed or he has to challenge order dated 28th January, 2011. In such a case, merely because on an earlier date, it was decided that the evidence affidavit should be filed on 28th January, 2011, the learned Judge should not have adhered to the time schedule which were fixed earlier. The learned Judge failed to note the intervening : 5 : 657-11-cra=.sxw development that the applicant had filed an application for recasting of issues and the said application came to be decided only on 28th January, 2011. A perusal of the impugned order would go to show that the learned Judge passed the said order in complete haste, without understanding the circumstances under which the applicant was placed namely his application for recasting of issues was rejected. 8. In view of the aforesaid discussion, order dated 28th January, 2011 will have to be set aside and the suit will have to be restored to the file of the Court. 9. I was told across the bar that the matter was posted on 6th December, 2010 for framing of issues. It was specifically mentioned by the learned advocate for the applicant that on 6th December, 2010 when he went to the Court, he came came to know that the issues were already framed on 4th December, 2010. This will clearly go to show that the learned Judge did the job of framing of issues in chambers and not in open Court and has not offered hearing to the learned advocate for the applicant as well as respondent. This practice followed by the learned Judge is not correct. When the matter is posted for framing of issues, it is expected of a Court to : 6 : 657-11-cra=.sxw hear both sides and thereafter ascertain the controversy between the parties and then proceed to frame the issues so as to see that all parties should get a chance to advance their respective submissions on the question of framing of issues. I am sure, if the learned Judge would have framed issues after hearing the learned advocate for the applicant as well as respondent, both the sides would have been able to place their contentions before the Court on the question of framing of issues and if that would have been done, the applicant would not have been required to file an application for recasting of issues. This practice should be avoided. 10. For the reasons mentioned aforesaid, following order is passed. ORDER (i) Civil Revision Application is disposed of. (ii) The impugned order dated 28th January, 2011 is set aside and the suit is restored to the file of the City Civil Court, Mumbai. Now that the suit is restored to the file of Court, the learned Principal Judge shall assign this suit to appropriate Court and the parties shall appear before the said Court on 19th October, 2011 as by that time job of assignment of the suit to the appropriate Court will be over. : 7 : 657-11-cra=.sxw (iii)The Registrar General is directed to forward a copy of this order to the learned Principal Judge, City Civil & Sessions Court, Mumbai with instructions to her to circulate copy of this order amongst all the Judges of City Civil Court, Mumbai and report compliance. (iv) In the facts and circumstances of the case, there shall be no order as to costs. (R.Y.GANOO, J.)