DINESH KUMAR SRIVASTAVA, SON OF LATE SHRI NARENDRA PRAKASH SRIVASTAVA Vs. PRADEEP KUMAR, SON OF LATE SHRI SATYAPRAKASH SRIVASTAVA AND ANOTHER

JUDGEMENT

(1.) The instant petition has been filed under Article 227 of the Constitution of India by the plaintiff/petitioners assailing the order dated 27.5.2017 passed by the Additional District Judge No.3, Sikar (hereinafter referred to as 'the trial Court') in Civil Suit No.71/2016 (11/2007) titled as Smt. Maheshwari and Anr. v. Smt. Kamla Devi and Ors , whereby the learned trial Court allowed the application under Order 14, Rule 5 CPC filed by defendant/respondents No.4 to 6 on 24.3.2017 and another application filed by the defendant/respondents No.4 to 6 under Order 14, Rule 2 (1) and (2) (b) read-with Order 14, Rule 5 CPC, framed three additional issues and also ordered to decide the issues as preliminary issues.

(2.) Learned counsel for the petitioners submits that he does not dispute the correctness of the impugned order regarding framing of additional issues by the learned trial Court, but the petitioners have objection with second part of the impugned order, whereby the learned trial Court has ordered to decide the said additional issues as preliminary issues, because neither of the issue is pure issue of law. Learned counsel also submits that all the three additional issues framed by the learned trial Court, are mixed issues of law and fact, which can be decided only after recording evidence of the parties. In support of his contentions, learned counsel placed reliance on the case of Ramesh B. Desai and Ors v. Bipin Vadilal Mehta and Ors reported in AIR 2006 SC 3672.

(3.) Per contra, learned counsel for the respondents No.4 to 6 opposed the arguments of learned counsel for the petitioners and submits that the burden to prove the additional issues framed vide impugned order, is on defendant/respondents No.4 to 6 and the defendant/respondents No.4 to 6 do not want to produce any evidence in respect of these additional issues, as such there is no perversity or impropriety in the impugned order passed by the learned trial Court and prayed to dismiss the petition being devoid or any substance.