Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2272/2019 ..1.. Suit No.9781/1991
CNR No.MHCC010062542019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.2272 OF 2019
IN
SUIT NO.9781 OF 1991
(High Court Suit No.342 of 1991)
Mr. Naeemudin Shamsuddin Khan .. Applicant
In the matter between
Yasmeen Amir Bux d/o Amir Rahim
Bux Shaikh and Others .. Plaintiffs
Versus
Haji Mohammed Oomer s/o Haji
Inayatulla Qureshi and Others .. Defendants
Mr. Abbas Zaidy, advocate for plaintiffs
Mr. Pramod Bhosle, advocate for defendant No.3
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 19th August, 2019
ORAL ORDER
Notice of motion is taken out by defendant No.3 for recalling
order dated 19.01.2019 that no additional issues are required to be
framed and to set aside the same. Further prayed for framing additional
issues as per additional written statement filed by him.
2. It is the contention of defendant No.3 that on 19.1.2019, matter
was fixed for evidence. On that date, plaintiff filed application vide
Exh.5 for calling upon defendant No.2 to lead evidence first. It is also
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recorded that no additional issues are required to be framed. On that
date, advocate for defendant No.3 was not present. Matter was
adjourned for hearing on Exh.5. On 08.02.2019, when advocate for
defendant No.3 produced draft issues, he was instructed to file proper
application for taking draft issues on record. Thereafter he has taken
out notice of motion No.660 of 2019 for filing additional written
statement and further issues, which came to be partly allowed as per
order dated 11.04.2019 whereby he was permitted to file his additional
written statement in relation to amendment carried out in plaint on
20.03.2018.
3. It is further contended that advocate for defendant No.3 was not
present when order of no further issues are required to be framed was
passed. Said error of advocate was not intentional and happened
inadvertently. Since several years plaintiff is contesting the matter only
for extorting monies from defendant No.3. It is further contended that
he is challenging order dated 19.01.2019 on the grounds that, issues
raised by defendant in additional written statement are not framed.
Order of taking written statement on record was passed on 05.12.2018
and thereafter on next date on 19.01.2019 when advocate of defendant
no.3 was absent in the court, order of no additional issues was passed.
Draft issues are already on record since 08.02.2019 and same is only
required to be framed by the Court. The matter to be decided on its
own merits. Plaintiffs are guilty of fraud as they have not brought forth
the clear picture of transfer of suit premises in favour of applicant/
defendant No.3. He has pursued the suit all along however due to
absence on 19.01.2019 the order dated 19.01.2019 came to be passed.
No prejudice would be caused to plaintiffs if reliefs sought are granted
in his favour. Accordingly, defendant No.3 urged in above terms.
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4. Plaintiff No.1 filed reply and contended that this Court has
already framed issues on 26th October, 2018 on the basis of pleadings of
the parties. In para no.4 of reply, plaintiff No.4 has contended about
framing of additional issues on the basis of additional written statement
of defendant No.3. She has denied all the allegations, contentions and
claim made by defendant No.3. Accordingly prayed for disposing of
notice of motion on the basis of para 4 of reply.
5. Perused notice of motion, affidavit in support of it, reply of
plaintiff No.1 and pleadings of the parties. Heard respective counsel for
parties. They advanced their arguments in accordance with respective
contention of parties.
6. It is useful here to mention that as per Order XIV Rule 5 of CPC,
the Court may at any time before passing a decree amend the issues or
framed additional issues on such terms as it think 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. In view of this provision there is no dispute that the Court is
empowered to amend issues or frame additional issues at any stage of
proceeding. It is pertinent to note that as per Order XIV of CPC issues
are to be framed on the basis of each material proposition confirmed by
one party and denied by other and as per Order XIV Rule 3 of CPC same
may be framed from all or any of the following materials :
(a) allegations made on oath by the parties, or by any persons
present on their behalf, or made by the pleader of such parties;
(b) allegations made in the pleadings or in answers to
interrogatories delivered in the suit;
(c) the contents of documents produced by either party.
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7. It is to be noted that after framing of issues by my learned
predecessor on 26th October, 2018 written statement has been filed by
the defendant No.3 vide Exh.4 on 18.12.2018 and thereafter he has
filed additional written statement vide Exh.4A on 24.04.2019. Keeping
in view provisions of Order XIV of CPC as pointed above, facts referred
above, pleadings of parties, documents placed on record and submission
of counsel for parties I am of the view that for just decision of
controversy between the parties issues are required to be amended or
recasted which also include additional issues required to be framed in
view of the amended pleadings and written statement and additional
written statement filed by defendant No.3. Therefore, notice of motion
deserves to be partly allowed and I recast issues by framing the same in
continuation of Exh.3. Hence, pass following order.
ORDER
1. Notice of Motion No.2272 of 2019 is partly allowed as under:
Order dated 19.01.2019 is set aside and hereby ordered
to recast issues at Exh.03 in continuation of said exhibit.
2. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 19.08.2019 Gr. Bombay
Typed on : 19.08.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
22.08.2019, 11.30 a.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
19.08.2019
JUDGMENT/ORDER signed by P.O.
on
21.08.2019
JUDGMENT/ORDER uploaded on 22.08.2019
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