ORAL ORDER

Heard learned advocate for the parties.

2. Order passed below application Exh.73 in RCS No.552 of 2011 by the learned 4th Additional Senior Civil Judge, Surat whereby the trial court partly allowed the application of defendant filed under O.14 R.5 of the CPC and pleased to frame proposed issue no.5 and 6 in the list of issues already framed while rejecting the prayer of the plaintiff to include other four issues.

3. Learned advocate for the petitioner would submit that petitioner who is defendant in the suit has specifically contended that the suit of the plaintiff is barred by mis-joinder of the parties and non-joinder of the necessary parties and another defence was also raised that suit is barred by provisions of Servant Vatan Abolition Act, 1958. He would further submit that trial court has committed serious error in framing the issue and since proper issues are not framed evidence cannot be led and therefore he would submit to allow this petition.

4. On the other hand, learned advocate Mr.Vishal Mehta for respondents would submit that since defendant no.1 has raised the contention about the non-joinder of the necessary party, burden would lie upon him to prove this issue. He would further submit that proposed issue nos.3 and 4 which is essentially framed by the defendant is covered by issue no.1 already framed and therefore there is no need to frame additional issues. He would therefore submit that petition is bereft of merits and requires to be dismissed.

5. Having heard the learned advocate for the parties, at the outset, what can be considered that the defendant has raised defence about the mis-joinder of party and non-jonider of party in the written statement; without specifying that who is the necessary party or who is not joined and who is mis-joined. In view of that, plaintiff is not required to shoulder the burden to prove this aspect; but the defendant. The proposed issue no.3 which is pressed by learned advocate for the petitioner to be framed this wise that, whether the suit suffers from the principle of mis-joinder or non-joinder of the party? Insofar as proposed issue no.4 is concerned, it is to be framed this wise that “whether the suit of the plaintiff is barred by provisions of Servant Vatan Abolition Act, 1958? These two issues shall be added by the trial court in the list of issues already framed at Exh.61 as Issue No.3(A) and 3(B).

6. With the aforesaid observations, finding and directions, present petition stands disposed of.

(J. C. DOSHI,J)

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