1 wp 2386.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2386 OF 2011 Vasudeo @ Amol S/o Wamanrao Umapurkar (Kulkarni), Age : 35 Years, Occu. : Business, R/o Paithan, Tq. Paithan, District Aurangabad. .. Petitioner Versus 1. Vasudeo S/o Dattatraya Harkare, Age : 51 Years, Occu. : Business, R/o Flat No. 4, Yashwant Apartment, Plot No. 6, Samarth Nagar, Aurangabad. 2. Vasu Auto, Authorised Representative Raj Auto, Authorized Dealer, Hero Honda, Court Road, Paithan, Tq. Paithan, Dist. Aurangabad. Through its Partner, Dattatraya Vishupant Harkare, 3. Dattatraya Vishupant Harkare, Age : 82 Years, Occu. : Business, R/o Paithan, Tq. Paithan, Dist. Aurangabad. .. Respondent 2 wp 2386.11 Shri P. S. Pawar, Advocate for the Petitioner. Shri A. S. Phatak, Advocate for the Respondent No. 1. CORAM : S. V. GANGAPURWALA, J. DATE : 20TH JUNE, 2011. ORAL JUDGMENT : . The notice of final disposal was issued by this Court on 01st April, 2011. 2. The present petitioner is the original defendant No. 3. The respondent No. 1 had filed a suit for recovery. The issues were framed by the Court. Thereafter an application was moved by the plaintiff for framing additional issues. The Trial Judge allowed the application and framed issue Nos. 5 to 7 as additional issues. Aggrieved thereby the present petition has been filed. 2. Shri Pawar, the learned counsel for the petitioner submits that in fact, additional issues framed are not in consonance with the pleadings of the present petitioner in the written statement. The issue No. 7 is totally out of context. According to Shri Pawar, the defendant/present petitioner has nowhere pleaded in his written statement that to pay such amount of Rs. 5,70,000/-, the 3 wp 2386.11 plaintiff has raised loan from UCO bank and has transfered the said loan amount to the account of partnership firm. When this fact was not at all pleaded, no question arises of framing an issue to that effect and that too by casting burden on the petitioner. Shri Pawar further contended that the issue Nos. 5 and 6 were not required to be framed at all. 3. Shri Phatak, the learned counsel for the original plaintiff supports the impugned order and says that from the totality of the defence of the present petitioner the said issues framed as additional issues are relevant. 4. With the assistance of the learned counsel I have gone through the pleadings of the petitioner/original defendant No. 3. In the written statement it nowhere transpires that the petitioner had ever pleaded that the plaintiff had raised a loan from UCO bank to pay the amount in the account of partnership firm. In the light of that it was totally erroneous on the part of the trial judge to frame additional issue No. 7. 5. As far as additional issue Nos. 5 and 6 are concerned, the same are in consonance with the pleadings. A fact pleaded by a party and denied by other would give rise to an issue. As such, 4 wp 2386.11 the grievance put forth by the petitioner in respect of framing of issue Nos. 5 and 6 is not countenanced by law. In the result the writ petition is partly allowed. The issue No. 7 as framed by the Joint Civil Judge Senior Division, Aurangabad vide order dated 11.02.2011 is struck down. 6. The Rule is accordingly made absolute to the above extent, however, with no costs. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/June 11