1 wp5758-11 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 5758/2011 (KAUSAR ZAINUDDIN DUDHIYAWALA VERSUS MOHAMMED HANIF ABDUL JABBAR) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Ahmed, counsel for the petitioner. CORAM : SMT. VASANTI A. NAIK, J. DATE : DECEMBER 14 , 2011 . By this petition, the petitioner impugns the order passed by the trial Court on 12.07.2011 partly rejecting an application filed by the petitioner for framing additional issues. The petitioner is the original defendant. A suit was filed by the plaintiff for eviction and possession. It was the case of the plaintiff that the petitioner-defendant was in wrongful occupation of the suit property. The trial Court framed the issues and when the matter was fixed for evidence, the petitioner- defendant filed an application for framing additional issues. According to the petitioner, it was necessary to frame the following issues. a) Whether the defendant proves that he is in occupation of the suit shop block in his own rights as a tenant ? b) Whether the suit suffers from non-joinder of plaintiff’s brother Abdul Rehman as a party to the suit ? c) Whether the suit suffers from non-joinder of parties on account of plaintiff’s failure to join co-owners of the suit property as parties to the suit ? Though the application was strongly opposed by the respondent-plaintiff, the trial Court partly allowed the application and framed the following issue; 2 wp5758-11 ‘Whether the suit is hit by non-joinder of necessary parties ?’ This issue covers the proposed issue at b) and c). Since the trial Court had refused to frame proposed issue a), the petitioner has filed the instant petition. There is nothing wrong with the impugned order passed by the trial Court on 12.07.2011. It was the case of the plaintiff that the petitioner-defendant was occupying the suit shop without permission of the plaintiff and the defendant was claiming to be a tenant in the suit property. The trial Court had already framed an issue “Whether plaintiff proves that defendant had occupied the suit shop belonging to the plaintiff without his permission ?”, as Issue No.2. The trial Court rightly observed that in case, the plaintiff failed to prove the Issue No.2, the plaintiff would not succeed in proving his case and, hence, there was no need of framing an additional issue in regard to the nature of the possession of the petitioner. The issue, which was sought to be framed by Proposed Issue a) is covered by Issue No.2, which places the burden on the plaintiff-respondent to prove that the defendant- petitioner was occupying the suit shop illegally and without permission. There is no error in the impugned order passed by the trial Court so as to interfere with the same, in exercise of the writ jurisdiction. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE APTE