YASIMBHAI MAMAD SURYA Vs. SARASWATIBEN HIMMATLAL

JUDGEMENT

(1.) Rule. Mr.Mahesh N.Bhavsar, learned advocate, waives of notice of Rule on behalf of the respondents.

(2.) This petition has been preferred under Articles 226 and 227 of the Constitution of India, with a prayer to issue a Writ of Certiorari or any other appropriate Writ or order to quash and set aside order dated 22.09.2009 passed below Exhibit 125 in Regular Civil Suit No.51 of 1988, whereby, the said application of the petitioner for framing of an additional issue, has been rejected.

(3.) Briefly stated, the relevant facts necessary for the decision of the petition are that the petitioner is the original defendant in the suit. The respondents, who are the legal heirs of the owner of the shop premises, filed the above-mentioned suit for declaration and permanent injunction against the petitioner on the ground that the petitioner is not a tenant of the suit shop as he is not the heir and legal representative of late Meman Suleman Yakub, who was a tenant of the said shop. A declaration to this effect has been prayed for and a permanent injunction restraining the petitioner from utilizing the suit premises has also been prayed for. The petitioner filed a written statement contesting the averments made in the Plaint. On 1.10.1987, five issues have been framed vide Ex.46. Thereafter, evidence has been led by the parties and the case is at the stage of final arguments of the petitioner (original defendant). On 19.09.2009, the petitioner preferred an application at Ex.125 for framing of an additional issue to the effect that: