1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.564 OF 2009 1. Sanjivanibai w/o.Pandurang Kamble, Age-43 years, Occu-Household, R/o.Kolgaon, Tq.Georai, Dist., Beed. 2. Masu S/o.Pandurang Kamble, Age-26 years, Occu-Agriculturist, R/o. Kolgaon, Tq.Georai, District : Beed. 3. Ashok S/o.Pandurang Kamble, Age-22 years, Occu-Household, R/o.Kolgaon, Tq.Georai, Dist : Beed PETITIONERS VERSUS 1. Pandurang S/o.Baburao Kamble, Age-53 years, Occu-Agriculturist, R/o.Kolgaon, Tq.Georai, Dist : Beed 2. Mahadev S/o.Baburao Kamble, Age-48 years, Occu-Agriculturist, R/o.Kolgaon, Tq.Georai, Dist : Beed 3. Shahadev S/o.Baburao Kamble, Age-38 years, Occu-Agriculturist, R/o.Kolgaon, Tq.Georai, Dist : Beed 2 4. Jijabai w/o.Baburao Kamble, Age-68 years, Occu-Household, R/o.Kolgaon, Tq.Georai, Dist : Beed 5. Laxmibai w/o.Arjun Satpute, Age-53 years, Occu-Household, R/o.Rajuri, Tq. And Dist. Beed. 6. Bhagubai w/o.Trimbak Mane, Age-48 years, Occu-Household, R/o.Khalapuri, Tq.Shirur, District : Beed. RESPONDENTS Mr.D.A.Karnik, learned counsel for petitioners. None appeared for respondent no.1 even though duly served. Mr.S.S.Chaudhary, learned counsel for respondent no.2 to 6 (CORAM : A.V.POTDAR, J.) DATE : 06/08/2009 PER COURT : 1. By the present writ petition under Article 227 of The Constitution of India, the petitioners who are original plaintiffs in RCS No.34/2005 on the file of Civil Judge, S.D. Gevrai, Dist. Beed have approached this Court by way of the present writ petition challenging the order dated 01/01/2009 passed below Exh.42. 2. Heard the learned counsels for the petitioners and respondents. 3. The facts which gave rise to file present writ petition can be 3 summarized as : The petitioners have filed RCS No.34/2005 before The Civil Judge, S.D.Gevrai against respondent no.1 to 6 who were the defendants in Lower Court in the suit for partition and separate possession of the properties mentioned in plaint para no.1. It further appears that after the service of summons, the respondents/defendants were appeared in the suit and contested the suit by filing their written statement. Thereafter, the issues were framed and the suit was listed for evidence. Accordingly both the parties have recorded/lead the evidence in support of their contentions and pleadings in the light of the issues framed. After the evidence was over, the parties have filed evidence close pursis and the suit was listed for final arguments. It appears that at that stage, an application was moved on behalf of respondent no.2 to 6 who are defendant no.2 to 6 before the Trial Court for framing of additional issue on the point of res-judicata. It appears that after hearing both the sides, the learned Trial Court pleased to allow the application and framed the additional issue vide his order dated 01/01/2009, the impugned order in the present writ petition. 4. Today, when the writ petition came up on the board for admission, during the course of submissions, it was urged across the bar that there are no pleadings in the written statement filed on behalf of defendant no.2 to 6 who are respondent no.2 to 6 before this Court. With the assistance of the learned counsel appearing for the petitioners as well as the respondents, I have perused the pleadings of the parties which were annexed with the petition and 4 particularly the written statement which is at page no.19 onward of the compilation of the present writ petition. It appears that in para no.9, internal page no.4 of the written statement, these respondents have given the particulars about the earlier proceedings between the same parties, which was the suit filed bearing no.337/1997 by the present respondent no.1 against the present respondent no.2 and 3. It is an admitted fact that the present petitioners/ original plaintiffs are the wife and sons of respondent no.1 Pandurang Kamble and claiming through them. That suit was filed in respect of the properties mentioned in plaint para no.1 of the suit filed by the present petitioners. Thus prima facie it appears that there are pleadings to that effect in para no.9 of the written statement filed by respondent no.2 to 6 in the Lower Court. As the pleadings are there, it is necessary to frame the issues to that effect. Order 14 Rule 5 of CPC is read as follows : Order 14 Rule 5 of CPC : 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 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. 5. Considering the provisions as laid down in Order 14 Rule 5 of CPC, the issues earlier framed under Order 14 Rule 1 can be amended, altered or modify at any stage of the proceedings before the pronouncement of the final judgment subject to in case after the 5 evidence is over, the issues are altered, modified or amended, an opportunities to be given to both the parties to lead the additional evidence in respect of the additional or modified issues framed in the proceeding. But there is no hurdle under the procedure for modifying or altering the issues after the evidence is closed. In the premise, bearing in mind this legal position, I do not find any fault in the order passed by the Trial Court. 6. In the premise. The writ petition sans merit, dismissed with no order as to costs. Even though the writ petition is dismissed while deciding the claim of the parties before the Trial Court, the Trial Court not to influence with the observations of this Court. (A.V.POTDAR, J.) khs/AUGUST 2009/wp564-09