1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4191 OF 2010 (Smt. Suman V. Saraf & Ors. vs. Srikrishna W. Saraf & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. OCTOBER 12, 2010. Heard Shri Sirpurkar, learned counsel for the petitioners and Shri Joshi, learned counsel for the respondents. While issuing notice on 07.09.2010, this Court has found that challenge in respect of framing of additional issues, after hearing the arguments, cannot survive as it is very much within the scope of Order 14, Rule 5 of Civil Procedure Code. This Court, therefore, issued notice only on challenge to that part of the order whereby the trial Court has given liberty to the parties to adduce evidence on that issue. Shri Sirpurkar, learned counsel in this background argues that the field covered by additional issue specifically fell for determination and the parties had already adduced evidence in that respect. The trial Court was, therefore, expected to record a finding and hence by framing additional issue, nothing new is being done. According to him, liberty to adduce additional evidence given to the parties has the effect of allowing 2 the respondents (plaintiffs) to fill in lacunae. He has relied upon the judgment of the Orissa High Court in the case of A. Nayak vs. K. Behera, reported at AIR 1971 Ori. 192, particularly paras 5 & 6 thereof to urge that there the liberty given to lead additional evidence is found justified because of explanation appended to Order 18, Rule 2 of Civil Procedure Code. The arguments is that explanation is now deleted and hence Court does not possess power to direct parties to lead additional issue after such issue is framed after final arguments in the suit. Shri Joshi, learned counsel, on the other hand states that argument of liberty to fill in lacunae being made is hypothetical because the evidence already tendered is not produced before this Court. He has further urged that the additional affidavit after said order is already filed by Power of Attorney Shri Eknath Saraf and its perusal shows that the documents already exhibited are spoken of therein. He further states that original copy of Power of Attorney executed by plaintiff No. 2 Mrs. Vaishali is being placed as a new document along with the said affidavit. He has thereafter stated that the assertions in para 6 of the affidavit may be discarded as the impugned order does not support it. The perusal of judgment delivered by the learned Single Judge of Orissa High Court no doubt reveals the position that because of explanation appended to Rule 2 of Order 18 of CPC, the learned Single Judge of Orissa High Court found that the trial 3 Court had jurisdiction to pass an order and direct parties to examine witness. Here, it is not in dispute that additional issue has been framed by the trial Court at the stage of delivery of judgment and that framing has been upheld by this Court in its order dated 07.09.2010. The only question, therefore, is whether liberty given by the trial Court to parties to lead evidence on said additional issue in unwarranted or not. The contention of the petitioner is said liberty has the effect of permitting the respondents (plaintiffs) to fill in lacunae. The contention is not substantiated because the evidence already on record is not produced before this Court. The perusal of additional affidavit as filed shows that Power of Attorney already exhibited at Exhs. 83, 84 and 85 are again deposed to therein. Only in para 3 there is a reference to Power of Attorney and the same has been produced along with said affidavit. The trial Court can deal with that document in accordance with law. The paragraph 6 of said affidavit is directed to be ignored and deleted as it is not an additional issue. As the trial Court has validly framed additional issues, it is apparent that consequent to that framing of issues, it has given parties liberty to lead evidence only on that issue. Merely because an explanation to Order 18, Rule 2 of CPC is deleted, that does not mean that the trial Court does not possess such jurisdiction. The judgment of the Hon’ble Apex Court in the case of Salem Advocate Bar Association vs. Union of India, reported at AIR 2005 SC 3353, in paragraph 33 4 clearly supports the steps taken by the trial Court. I do not find any jurisdictional error in the matter. Writ Petition is, therefore, rejected. No order as to costs. JUDGE *GS.