PATEL SULOCHANABEN Vs. ALPABEN

JUDGEMENT

(1.) AS common facts and law are involved in both these petitions they are heard together and disposed of by this common order.

(2.) THE petitioners herein have challenged order dated 6th September 2010 passed by the Court of learned Principal Senior Civil Judge, Gandhinagar (for short, the trial court), having Camp at Kalol, below Exhibit 336 in Special Civil Suit No.100 of 2001 whereby the trial court has recast issue no.3 in the main suit. THE petitioners have also challenged order dated 6th September 2010 passed by the same Court passed below exhibit 176 in Special Civil Suit No.49 of 2003 whereby the trial court has ordered to delete issue no.2(3) in the suit.

(3.) LEARNED Advocate for the petitioners submitted that the impugned order runs counter to the proposition flowing from the provisions embodied in Order XIV of the Code of Civil Procedure, 1908 read with sections 101, 102 and 103 of Indian Evidence Act, 1872. 5.1 He submitted that the petitioners had objected to the framing of Issue No.3 at its original form casting burden upon the petitioners to prove that the sale deeds in their favor executed by respondent no.3 were legal and valid and the said issue was deleted and therefore subsequently the court ought not to have passed the order adding Issue No.3. According to him Issue No.2(3) was not required to be deleted as it is very relevant for deciding the suit. 5.2 He submitted that there exists materials on record to show that it is the contention of respondents no.1 and 2 to the effect that respondent no.3 was not having financial position to purchase huge land and therefore Issue No.2(3) ought not to have been deleted. 5.3 He further submitted that though the petitioners have filed two applications at Exhibits 173 and 175, the same were not decided and therefore this is a fit case to direct the trial court to decide the said applications.