: 1 : nms-1332-09=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1332 OF 2009 IN SUIT NO. 3508 OF 1993 Madhukar Tukaram Shinde .. Plaintiff v/s. Shrikrishna Dattaram Shirke & Ors. .. Defendants ......... Mr. Subodh Joshi with Anil Kandalgaonkar for the plaintiff Mr. P.N. Patwardhan with Kantilal Kanogia for defendants in support of NMS. ......... CORAM : R.Y.GANOO, J. DATE : 9th SEPTEMBER,2010. P.C. : 1. This motion is taken out by the defendants for recasting of issues. It is noticed that at one stage, there were as many as 4 defendants though the principal allegations were levelled against the present defendant Shri Shrikrishna D. Shirke. It is noticed that before the commencement of the recording of evidence in the year 2009 defendant nos. 2 to 4 came to be deleted. However, present plaintiff and present defendant proceeded for the purposes of recording of evidence on the basis of the issues which were very much on record and which are tilted as earlier issues and mentioned in Schedule I to the present notice of motion. I have perused those issues and in the said : 2 : nms-1332-09=.sxw issues there is a reference to other defendants also. There are certain issues which pertain to other defendants i.e. defendant nos. 2 to 4. This suit is for recovery of possession in regard to the suit premises on the ground that defendant dispossessed the plaintiff from the suit premises on 2nd February, 1993. Hence, the issues ought to have been framed in that direction. Be that as it may, parties lost attention of the fact that little prior to the recording of evidence when defendant nos. 2 to 4 were deleted, it was necessary to recast the issues and restrict the issues which arose on the basis of the plaint filed by the plaintiff and the written statement of the defendant. 2. After having heard learned Counsel on both sides and after having perused what is termed as earlier issues, I am of the view that it is necessary to recast the issues to bring the controversy limited to the issues which arose as between the plaintiff and the defendant keeping in view the nature of the suit namely suit under Section 6 of the Specific Relief Act. 3. Learned Counsel for the defendant contended that it has been the prime contention of the defendant that the suit is beyond the period of limitation, naturally, the burden to prove that issue shall be on the defendant. Issue in that behalf has been framed in the earlier issues : 3 : nms-1332-09=.sxw however, burden is cast on the plaintiff. This could have been avoided. Keeping in view the aforesaid discussion, I am inclined to recast the issues knowing fully well that the evidence of the plaintiff is over. Learned Counsel for the defendant has submitted that if appropriate issues are framed, controversy in the suit can be brought down in and the Court can decide the points in dispute. Hence, I am inclined to recast the issues which are as follows :- 1. Whether the plaintiff proves that he was in possession of the suit flat on or before 2nd February, 1993 ? 2. Whether the plaintiff proves that he was dispossessed from the suit flat on 2nd February, 1993 by the defendant ? 3. Does the defendant prove that suit is barred by period of limitation? 4. Is the plaintiff entitled to recover possession from the defendant in accordance with the provisions of Section 6 of the Specific Reliefs Act ? 5. What order ? 4. It is noted that the evidence of plaintiff is over. In view of the recasting of issues interest of justice would require that plaintiff must get an opportunity to step into witness box or examine any other : 4 : nms-1332-09=.sxw witness to discharge the burden cast on him by the issues which are framed today. Of course, after the turn of the plaintiff is over, defendant will be free to adduce such evidence as he wants to negative the case of the plaintiff. In view of the above, following order is passed. ORDER (i) The prayer for recasting of issues is granted. The said issues are as under:- ISSUES 1. Whether the plaintiff proves that he was in possession of the suit flat on or before 2nd February, 1993 ? 2. Whether the plaintiff proves that he was dispossessed from the suit flat on 2nd February, 1993 by the defendant ? 3. Does the defendant prove that suit is barred by period of limitation? 4. Is the plaintiff entitled to recover possession from the defendant in accordance with the provisions of Section 6 of the Specific Reliefs Act ? 5. What order ? 5. If the plaintiff wishes to lead additional evidence by stepping into witness box to discharge the burden cast on him in terms of aforesaid : 5 : nms-1332-09=.sxw issues, he is free to do so. In addition to that, plaintiff wishes to examine any other person as a witness he is free to do so. Needless to mention that after the evidence of plaintiff is over, defendant can examine himself or other witness as he may desire to complete the trial. 6. Adjourned to 21st September, 2010 for directions. Notice of motion is disposed of. There shall be no order as to costs. (R.Y.GANOO, J.)