1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.1711 of 2010 Ashok Baburao Deshmukh ... Petitioner versus Dilip Baburao Deshmukh & ors. ... Respondents ... Mr. S.G. Deshmukh i/b Abhijeet J. Kandarkar for the petitioner. Mr.G.S.Godbole i/b Karan Thorat for respondent nos.1 and 2. CORAM : D.G. KARNIK, J. DATED : 15th June 2010 P.C. 1. Rule. Mr.Godbole waives service on the Rule for respondent no1 and undertakes to file appearance on behalf of respondent no.8 also. Respondent nos.2 to 7 are formal parties. Service of Rule on them is dispensed with. By consent, Rule is made returnable forthwith. 2. Petitioner is the original plaintiff and respondent no.1 is the original defendant no.1 in Special Civil Suit No.148 of 2007 pending in the Court of Civil Judge, Sr.Division, Kalyan. Respondent no.1 filed an application for amendment of the issues on 17th December 2009 suggesting two additional issues as follows:- 2 1) Whether the suit is barred by the limitation? And also bad for non-joinder of necessary parties? 2) Whether the plaintiff valued the suit properly and paid proper Court fee? After hearing the parties, learned Judge declined to frame the additional issues as suggested by respondent no.1 but framed an entirely different issue which reads as follows: “Whether the suit is maintainable in the present form?” 3. Mr.Deshmukh, learned counsel for the petitioner submitted that the issues as framed was vague and it puts the plaintiff in a very difficult situation inasmuch as the plaintiff even does not know what is the defence of the defendants why the suit is not maintainable. According to him, plaintiff would be unable to adduce any evidence regarding the said issue without even knowing what is the contention of the defendant as to the non maintainability of the suit. According to him, there is no contention in the written statement setting out the grounds for non maintainability of the suit. The submission of Mr.Deshmukh deserves to be accepted. The issue as framed puts burden on the plaintiff to prove the maintainability of suit without knowing what are the grounds on which the maintainability of the suit is challenged and the issue gives no indication as to what the plaintiff is required to prove for maintainability of the suit. In view of this, the impugned order is required to be set aside. 3 4. However, the matter cannot rest here. The issues as suggested by the defendant no.1 appear to arise from the pleadings. The defendants had contended that the suit is barred by limitation. They had contended that suit is also non joinder of necessary parties. They had also also contended that the suit was not properly valued and proper court fee stamp was not paid. In the light of these additional issues as suggested by respondent no.1 are required to be framed. 5. Learned counsel for the petitioner submitted that the pleadings in respect of the limitation are not proper. Under section 3 of the Limitation Act, duty is cast upon the Court to dismiss the suit which is barred by limitation. The Court is required to frame an issue of limitation when it appears to the Court that the suit is prima facie barred by limitation. As such, any defect in the pleadings regarding limitation would not prevent the Court from framing an issue regarding limitation. 6. Learned counsel for the petitioner then submitted that the evidence has been over and therefore issues could not have been amended at that stage. Order 14 Rule 5 states that the Court may at any time before passing a decree amend the issue or make additional issues on such terms as it thinks fit and all such amendments or additional issues as may be necessary for determining the matter for controversy between the parties shall be so made or framed. The power of a Court to frame, add, alter or amend issues can be exercised at any stage prior to the passing of the decree. In the circumstances, the contention that the issues could not have been amended at a late stage is rejected. For these reasons, writ petition is allowed and following 4 order is passed: 7. Impugned order is set aside. The following issues are framed in the suit. 1) Whether the suit is barred by the limitation? And also bad for non-joinder of necessary parties? 2) Whether the plaintiff valued the suit properly and paid proper Court fee? 8. Rule is made absolute to the extent indicated above. In view of the amendment of the issue, trial Court would give opportunity to the parties to adduce additional evidence, if any, as regards the additional issues. (D.G. KARNIK,J.)