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IN THE HIGH COURT OF BOMBAY
MILIND N. JADHAV
Sudam Sitaram Dagade – Appellant
Versus
Uttamrao Sitaram Dagade – Respondent
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
Important Point :Framing additional issues post-evidence completion is impermissible if the principal issue can be proved, deeming such applications as afterthoughts.
Omission to frame an issue would not vitiate the trial if the parties were aware of the issue and led evidence on it.
The main legal point established in the judgment is that the court may dismiss an application for framing of an additional issue if it deems that the party was lethargic in pursuing their remedy and ....
Existing legal issues sufficiently addressed the matter in controversy, making the request for additional issues unnecessary and delaying proceedings.
The validity of a Will under Section 63 of the Indian Succession Act requires a full trial if disputed facts exist, rather than being decided as a preliminary issue.
A registered Will's validity under the Indian Succession Act requires compliance with statutory attestation requirements, and mixed questions of law and fact necessitate a full trial rather than dism....
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