Sanjay Misra - (1.) HEARD Sri Gautam Kumar Upadhyay, learned counsel for the petitioner. The petitioner is aggrieved by the order dated 2.3.2009 passed by the Additional District & Sessions Judge, Court No. 7, Varanasi in Suit No. 712 of 2008 (Abdul Zahir v. Firm 'KALLYANAM SILKS, Kannur), whereby the application 15Ga filed by the petitioner has been rejected.
(2.) LEARNED counsel for the petitioner states that the plaintiff namely Abdul Zahir filed a Suit No. 712 of 2008 by impleading Firm Kallyanam Silk as defendant No. 1 and the petitioner Abdul Aziz as defendant No. 2 stating that he is partner of the defendant No. 1. LEARNED counsel for the petitioner states that the petitioner is not a partner of the defendant No. 1 Firm and alongwith his application 15Ga for striking out of his name from the array of parties, he has filed a certificate issued by the office of the Assistant Commissioner (KAVT), Special Circle Kannur dated 29.8.2008 on an application under the R.T.I. Act clearly informing that Abdul Aziz is not partner of M/s Kallayanam Silk. He states that in light of the aforesaid evidence, it was clearly established that the petitioner has nothing to do with the Firm and therefore, the Court below ought to have allowed the application and deleted the name of the petitioner as defendant No. 2 from the plaint. Having considered the submission of learned counsel for the petitioner and perused the record, the trial Court while considering the application has given reason for rejecting the same. The reason being that the evidence filed by the petitioner can be considered only after the written statement is filed, the issue is framed and the evidence is led by both the parties. Such issue whether the petitioner is a rightly impleaded party as defendant No. 2 in the suit can be framed and decided. For the aforesaid reason, the trial Court has rejected the application 15Ga. The finding of the Court below is quoted hereunder: JUDGEMENT_708_ADJ1_2011Image1.jpg Insofar as the submission of learned counsel for the petitioner is concerned the procedure prescribed under Order 14 of the Code of Civil Procedure relating to the framing of issues is quite clear, which provides that when there a dispute between the plaintiff and defendant on any question of fact then an issue can be framed and the parties can lead their evidence in support of pleas taken in the plaint/written statement. Issues can be framed even from the contents of documents produced by either of the parties. The evidence led by the parties is then proved or disproved by them and it is only thereafter that the Court can consider such evidence while deciding the issue. Consequently when the Court has clearly recorded that the document filed by the petitioner can be considered only at the time of deciding the issue framed it cannot be said that it has committed any error in law. For the aforesaid reason, no error can be found in the impugned order. The writ petition has no merits and it is accordingly dismissed. No order is passed as to costs.;