NARENDRA KUMAR RATHI Vs. RAVINDRA MODI

JUDGEMENT

(1.) HEARD on the question of admission. 1. The petitioner/defendant/tenant has filed this petition under Article 227 of the Constitution of India for issuing appropriate writ in the nature of certiorari to quash and set aside the impugned order dated 31.7.2012 (Annx.P/10) whereby his application filed for recalling the order dated 27.7.2012 extending opportunity to the plaintiff to adduce additional evidence on newly framed additional issue No.8 relating to non-availability of the alternate accommodation to the respondent for the alleged need in the same town, has been dismissed.

(2.) THE petitioner's counsel after taking me through the averments of the petition as well as the papers placed on the record along with the impugned order by referring the issue framed earlier so also the additional issues which were framed on 27.7.12 specially the additional issue No.8 argued that with respect of the question of non-availability of the alternate accommodation with the respondent/plaintiff in the same town, such question was covered in issue No.7 framed earlier at the initial stage of the case and in the light of such issue No.7 the respondent has already adduced his evidence and, therefore, even on framing the additional issue No.8 there was no necessity to extend the opportunity to the respondent to adduce the additional evidence on such additional issue No.8. In continuation, he said that in any case the plaintiff has adduced his evidence in the matter keeping in view the pleadings of the parties and, in such premises also the trial court has committed grave error in extending such opportunity to adduce the additional evidence to the respondent on the newly framed issue and prayed to set aside the impugned order till the aforesaid extent by admitting and allowing this petition. In support of his contention he placed his reliance on a decided case of this court in the matter of Ganpat Rao Vs. Ashok Rao and others-2004 (III) MPLJ 571).

(3.) SO far the case law in the matter of Ganpat Rao (supra) cited on behalf of the petitioner's counsel is concerned, it is suffice to say that such case was decided at the appellate stage, taking into consideration that even in the lack of the issue the parties had adduced their ample evidence before the trial court and, in such premises, it was held that even in the absence of the issue, the available evidence is sufficient to consider and adjudicate the matter and such case was decided. But in the case at hand the suit is still pending before the trial court and by rectifying the earlier mistake, the trial court after framing the additional issue, has extended opportunity to the respondent/ plaintiff to adduce the additional evidence then it could not be said that the trial court has committed any fault in passing the impugned order. So, in such premises, the case law cited on behalf of the petitioner's counsel is not helping to the petitioner.