1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3306 OF 2009 1) Suresh s/o Pralhad Bachute, Age-40 years, Occu:Agri., R/o-Kaij, Dist-Beed. 2) Sanjay s/o Pralhad Bachute, Age-32 years, Occu:Agri., R/o-Kaij, Dist-Beed. ...PETITIONERS. VERSUS 1) Manoj s/o Abhiman Bachute, Age-31 years, Occu:Student, R/o-Kaij, Dist-Beed, 2) Raghunath s/o Mahadu Bachute, Age-48 years, Occu:Agri., R/o-As above, 3) Gautam s/o Mahadu Bachute, Age-42 years, Occu:Agri., R/o-Kaij, now R/o-Salegaon, Tq-Kaij, Dist-Beed, 4) Pralhad s/o Mahadu Bachute, Age-50 years, Occu:Agri., R/o-Kaij, Dist-Beed. ...RESPONDENTS. ... Mr.Sachin Deshmukh Advocate for Petitioners. Mr.R.F. Totla Advocate for Respondent Nos. 1 to 3. None present for Respondent No.4 though served. ... 2 CORAM: K.K. TATED, J. DATE : 4TH AUGUST, 2009. PER COURT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, matter is taken up for final hearing at the stage of admission. 2. By this Petition under Article 227 of the Constitution of India, the Petitioners - original plaintiffs challenges the order dated 18th October, 2008 passed by IInd Joint Civil Judge, Junior Division, Kaij, Dist-Beed below Exhibit 75 in Regular Civil Suit No.427 of 1998. 3. The Respondents - original defendants filed application below Exhibit 75 dated 12th July, 2006 for framing following additional issues on the basis of pleadings on record: 1) Whether the plaintiff paid proper Court fees on plaint and valued suit properly? 2) Whether this Court has jurisdiction to try this suit? 3 3) Whether the suit is bad for non joinder of necessary parties? 4) Whether plaintiffs prove that the Court decree passed in Regular Civil Suit No.54 of 1998 is obtaining by playing fraud on defendant No.4? 4. In the said application below Exhibit 75, the Petitioners - original plaintiffs filed their say and opposed the same on the ground that as per nature of the suit being declaration suit and nature of relief claimed, the proposed issues are not necessary. The issues already framed are proper, wide and comprehensive. The application is filed only to protract and prolong the hearing of the suit which is pending since 2000 for final hearing. The application below Exhibit 75 preferred by the Respondents came to be allowed by order dated 18th October, 2008 and following two preliminary issues were framed: 1) Whether the plaintiffs have paid proper court fees on the plaint and valued the suit properly? 2) Whether this Court has jurisdiction to entertain the suit? 5. The said order dated 18th October, 2008, challenged by the Petitioners - original plaintiffs in this 4 Petition. It is the case of the Petitioners that they filed Regular Civil Suit No.427 of 1998 on 24th December, 1998 for following reliefs: "A) That the suit of the plaintiffs may be decreed against defendants No. 1 to 3, declaring Plaintiffs and defendant no.4 as the joint owners and possessors of suit property House No.1204, described in para Ist of the Plaint and in the map given in the schedule A attached with Plaint. B) That, the decree in R.C.S. No.54/98 Manoj vs. Pralhad and others may be declared as null and void and not binding on Plaintiffs. C) That, the decree of perpetual injunction may be passed against defendants No. 1 to 3 restraining them perpetually from obstructing and disputing the possession of Plaintiffs and defendant No.4 on the suit property House No.1204. D) That, the Plaintiff be granted any other relief to which they are entitled to. 5 E) The costs of the suit be awarded to Plaintiff." 6. Thereafter the trial Court framed Issues on 7th April, 2002. It is the case of the Petitioners that after the lapse of four years, the Respondents filed application below Exhibit 75 dated 12th July, 2006 for framing additional issues as stated herein above. It is the case of the Petitioners that the trial Court failed to consider that the Petitioners have already closed their evidence by filing affidavit of evidence, way back in the year 2006 and therefore there was no reason to allow the application at Exhibit 75. Learned counsel for the Petitioners further submitted that the trial Court erred while allowing the application and framing the issues, which already framed and the issues were cast and re-casted on number of occasions prior to allowing the application at Exhibit 75. He submitted that once the affidavit of evidence is filed by the Plaintiffs, then the Court should not have re-casted the issues because that affects the case of the Plaintiffs on merits. Learned counsel for the Petitioners relied on the Authority in the matter of Ajendraprasadji N. Pande and another vs. Swami Keshavprakeshdasji N. and others, 6 reported in 2007 AIR SCW Page 513. In that case, the Apex Court held that the amendment of the written statement and recasting of the issues should not be allowed once the trial begins. Head Note (A) of the said Judgment reads as under: "(A) Civil P.C. (5 of 1908), O.6, R.17 Proviso - Amendment of written statement - Bar after trial begins - Amendment sought after evidence of 3 witnesses was over and documentary evidence was tendered - Application of defendants to recast issues had also been dismissed - No grounds raised in application to show that despite diligence matter could not be raised earlier - Facts moreover showing otherwise - Granting amendment at such stage would cause serious prejudice to plaintiff - Moreso when amendment seeks to introduce new and totally inconsistent case." 7. In the above mentioned facts and circumstances, learned counsel for the Petitioners submitted that the impugned order dated 18th October, 2008 was liable to be set aside. 7 8. On the other hand, learned counsel appearing on behalf of the Respondents - original defendants supported the impugned order dated 18th October, 2008 passed by the trial Court on the ground that the Court can re-cast the issues at any time before passing a final decree on the basis of the pleadings on record. He submitted that the Respondents in their application dated 12th July, 2006 specifically stated that they in their written statement, raised objection about Court fees and jurisdiction of the Court. Therefore, the Respondents filed application for framing additional issues about Court fees, jurisdiction of the Court, non joinder of necessary parties and practicing of fraud in obtaining decree in Regular Civil Suit No.54 of 1998. He submitted that the trial Court after considering the copy of the plaint, written statement filed by the Respondents, framed two additional issues, one in respect of payment of Court fees and another on the point of jurisdiction of the Court to entertain the suit. In view of the above mentioned facts, learned counsel for the Respondents states that the additional issues framed by the trial Court, goes to the root of 8 the matter and same were framed on the basis of the pleadings on record itself. Therefore, it is not necessary to interfere with the said well reasoned order under Article 227 of the Constitution of India. He submitted that the Petitioners failed to point out any illegality, irrationality and procedural impropriety in the order passed by the trial Court. 9. It is clear from the pleadings of the parties that the Respondents - original defendants specifically raised objection in their written statement about payment of court fees on the Plaint and valuation of the suit property. As per Order 14 of the Code of Civil Procedure, the Court can amend and/or frame additional issues before passing a decree. Order 14 Rule 5 of the Code of Civil Procedure reads as under: "[5. Power to amend, and strike out, issues. (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made 9 or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.]" 10. It is crystal clear from bare reading of Order 14 Rule 5 of the Code of Civil Procedure that Court can frame additional issues at any time before passing a decree. It is clear that duty to frame the issues is put on the Court and powers are vested in the Court to amend existing issues or frame additional issues on such terms as the Court thinks fit. The Court below considering the pleadings on record i.e. Plaint and written statement, framed additional two issues, which go to the root of the matter. I do not find any reason to interfere with the well reasoned order passed by the trial Court dated 18th October, 2008 below Exhibit 75 in Regular Civil Suit No. 427 of 1998. Writ Petition is rejected with no order as to the costs. Rule stands discharged. [K.K. TATED, J.] asb/JULY09/wp3306.09