JUDGMENT :

ABHAY AHUJA, J.

1. Heard learned counsel for the parties.

2. This petition filed under Article 227 of the Constitution of India impugns an order dated 19th August, 2022 below Ex.66 in pending R.A.D. Suit No. 804 of 2010 (the “said suit”) whereby the application filed by the petitioner for recasting of issues has been rejected.

3. The Petitioner had earlier filed the said suit for declaration of tenancy before the Small Causes Court, at Bombay in respect of the suit premises being Flat No. 14, First floor, Mayur Pankh, Khokhani Lane, Ghatkopar (East), Mumbai-400077 (the “said/suit premises”). The defendants/landlords, the Respondent had filed written statement thereafter and the issues were framed on 11th February, 2019. Amendments were carried out to the plaint and the defendants had also filed their additional written statement. Thereafter, additional issues were framed on 6th November, 2020. The issues framed on 11th February, 2019 and on 6th November, 2020 are set out as under:

“Issues framed on 11.02.2019

1. Whether the plaintiff proves that Defendant No. 1 is the owner and Nirmalaben J. Mehta was the tenant in respect of the suit premises?

2. Whether the Plaintiff proves that defendant No. 2 and 3 are the unlawful occupants of the suit premises?

3. Whether the Plaintiff is entitled for declaration as prayed?

4. Whether the Plaintiff is entitled for possession of the suit premises as prayed?

5. What order and decree?

Additional issues framed on 06.11.2020

1. Whether the Plaintiff is entitled for the relief for mandatory injunction as prayed?

2. Whether the Plaintiff is entitled for the relief of perpetual injunction as prayed?”

4. In the application below Exhibit 66 the Petitioner sought recasting of the issues as under:

“Issues Proposed

1. Whether the Plaintiff proves that Nirmalaben was the monthly tenant to the Defendant No. 1 in respect of the suit premises?

2. Whether the Plaintiff proves that he is entitled to tenancy rights in respect of the suit premises?

3. Whether the Plaintiff proves that the Defendant No. 1 has unlawfully put the Defendant Nos.2 and 3 in possession of the suit premises?

4. Whether the Defendant No. 1 proves that Mayur Pankh building is declared as dilapidated in accordance with the provisions of Section 354 of the Bombay Municipal Corporation Act, 1888?

5. Whether the building was demolished by the Defendant No. 1, pursuant to the notice under Section 354 of the Bombay Municipal Corporation Act?

6. Whether the Defendants prove that the Plaintiff has no right in the suit premises due to demolition of the Mayur Pankh building?

7. Whether the Plaintiff is entitled to the possession of the suit premises?

8. Whether the Defendant No. 1 is liable to commence the construction of the building within 1 year from the date of demolition of the said dilapidated Mayur Pankh building?

9. Whether the Defendants are liable to complete the construction, within 3 years from the date of demolition of the building?

10. Whether the Defendant No. 1 is liable to handover possession of the newly constructed premises in the new construction to the Plaintiff, and allot area equivalent to the then existing suit premises, in the newly constructed building?

11. Whether the Defendants prove that this Honourable Court has no jurisdiction to try and entertain the suit?

12. Whether the defendant No. 1 proves that the Defendants No. 2 and 3 are lawful tenants?

13. What order?”

5. In the Trial Court the application for recasting of issues was objected to by the Respondents herein on the ground that the same was only to delay the proceedings and that the issues framed earlier based on the pleadings and were correctly framed and therefore, the application by the Petitioner was liable to be rejected.

6. The Trial Court after hearing both the parties has observed that issues have been framed on 11th February, 2019 and additional issues have been framed on 6th November, 2020 and in all six issues have been framed and the Petitioner was seeking to recas