IMPORTANT POINT
Important Point :
Framing additional issues post-evidence completion is impermissible if the principal issue can be proved, deeming such applications as afterthoughts.

JUDGMENT :

1. This Writ Petition takes exception to the order dated 25.01.2023 passed by the 6th Joint Civil Judge Senior Division, Pune, allowing the Application of Plaintiff filed below Exhibit "91" to recast the issues framed below Exhibit "26" in the suit proceedings and frame an additional issue.

2. Parties are referred to as "Plaintiff" and "Defendants" for convenience.

3. At the outset, it needs to be noted that cross-examination of the Plaintiff on the issues framed in the Suit has been completed. Thereafter Application below Exhibit "91" is filed by Plaintiff on 17.11.2022 under Order XIV Rule 5 of CPC, when the Suit is part- heard.

4. In the above facts certain dates and events are required to be delineated for proper appreciation of the issue before me. Plaintiff has filed Special Suit No. 419 of 2007 for declaration, partition and for perpetual injunction wherein challenge is maintained to the Will dated 09.02.2004 alleged to be executed by one Mr. Gayaram Piraji Dagade in favour of the Original Defendant No.2.

5. Pleadings were completed by the parties and issues were framed below Exhibit "26" in 2010. Evidence of the Plaintiff was filed in the year 2010 thereafter and the Impugned Order records that cross-examination of the Plaintiff is now concluded in the year 2022.

6. In the above background, on 17.11.2022, Plaintiff filed Application below Exhibit "91". It is stated in the Application that the matter is part-heard, that Plaintiff began his evidence in the year 2010 and Defendants have completed cross-examination of the Plaintiff, that thereafter while perusing the issues framed by the Court, it is found by Plaintiff that certain issues are required to be added or replaced.

7. Hence the Plaintiff’s case is that an additional issue be framed as under :-

“ Do the defendants prove that the Will, dated 09.02.2004 executed by late Mr. Gayaram Piraji Dagade is proper, legal, without any influence and beyond any suspicion?”

8. The ground on which such an additional issue is to be framed as stated in the Application is that Defendant Nos. 1 to 4 have asserted in their written statement that the Will dated 09.02.2004 is proper and genuine.

9. It is seen from the pleadings placed before me that before the trial began, issues were framed on two (2) occasions, firstly on 13.07.2010 issues were framed below Exhibit "26" as under:-

“(1) Does Plaintiff prove that, the Will allegedly executed by deceased Gayaram in favour of Defendant No. 2 is forged and fraudulent?

(2) Does he prove that he has half share in the suit lands?

(3) Is he entitled to the relief sought?

(4) What order and decree?”

10. After the above issues were framed an additional issue namely issue No. 5 was framed at the behest of Plaintiff's Application below Exhibit "35" on 02.11.2011 as under :-

“(5) Whether suit is barred by any law?”

11. The witness action of Plaintiff is thereafter held on 09.12.2021, 01.10.2022 and 05.11.2022 and is completed. Thereafter on 17.11.2022, Plaintiff filed Application below Exhibit "91". Perusal of the Impugned Order reveals that the Application below Exhibit "91" is allowed and the only reason stated by the Court below in allowing the Application is that it is in the interest of justice.

12. Mr. Kulkarni, learned Advocate appearing for Petitioners (Original Defendants) would submit that two (2) specific pleadings i.e. in paragraph No. 3 in the Suit plaint and Plaintiff's cross-examination recorded on 01.10.2022, would not entitle the Plaintiff to seek framing of or recasting of the alleged additional issue as it may amount to improving the Plaintiff's case after his witness action. The Suit plaint is appended at Exhibit "A" to the Application. Paragraph No. 3 in the Suit plaint refers to Mr. Gayaram Piraji Dagade who is the original holder of the Suit property. It is stated that Plaintiff and Defendant No. 1’s father namely Mr. Sitaram Rama Dagade was having kul (dqy ) in the Suit property.

12.1. It is further stated that Mr. Sitaram Rama