Punjab-Haryana High Court
Kuljeet Singh vs Kulwinder Kaur And Others on 15 September, 2022
Author: Alka Sarin
Bench: Alka Sarin
CR-5583-2019 (O&M) -1-
THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
-.-
CR-5583-2019 (O&M)
Reserved on: 21.09.2022
Date of Decision : 28.09.2022
Kuljeet Singh ....Petitioner
VERSUS
Kulwinder Kaur & Others ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Aayush Gupta, Advocate for the petitioner.
Mr. Sunny K. Singla, Advocate for the respondents.
ALKA SARIN, J.
The present revision petition has been filed under Article 227 of the Constitution of India impugning the order dated 26.08.2019 whereby the application filed by the plaintiff-petitioner under Order 14 Rule 5 CPC for framing of additional issues has been declined.
The brief facts relevant to the present lis are that the plaintiff- petitioner filed a suit for declaration as well as injunction averring therein that he was owner in possession of land measuring 23 kanals 19 marlas, 13 kanals 8 marlas, 37 kanals 17 marlas, 42 kanals 16 marlas, 4 kanals 2 marlas, 12 kanals, 12 kanals 5 marlas as per jamabandi for the year 2003-2004, situated at village Dhaula, Tehsil and District Ludhiana and further challenged the registered Power of Attorney dated 25.06.2010 registered in the office of Sub Registrar, Ludhiana as illegal, null and void as a result of coercion and fraud played by respondent Nos.1 and 2 i.e. the wife and son of the petitioner, as also for a declaration that 1 of 10 ::: Downloaded on - 30-12-2022 22:54:21 ::: CR-5583-2019 (O&M) -2- the sale deeds dated 01.07.2010 ,08.07.2010 and 13.07.2010 were null and void. The suit was contested by the defendant-respondents who stated that a power of attorney was executed by the plaintiff-petitioner in favour of the defendant- respondent No.2 who then, on the basis of the power of attorney, executed sale deeds dated 01.07.2010, 08.07.2010 and 30.07.2010 in favour of defendant- respondent No.1 on the basis of an oral agreement to sell. It was averred that there was no sale deed dated 13.07.2010 and that the same is 30.07.2010.
On 04.08.2014, the following issues were framed :
1) Whether the plaintiff is entitled to the relief of declaration as prayed for ? OPP
2) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? OPP
3) Whether the suit is not properly valued for the purposes of court fee and jurisdiction as the plaintiff has not paid the requisite ad-valorem Court fee and hence plaint is liable to be dismissed ? OPD
4) Whether the plaintiff is not in possession any portion of the property ? OPD
5) Whether the plaintiff has no cause of action or locus standi to file the present suit ? OPD
6) Whether the suit is based on false, frivolous and vexatious allegations as no fraud has been placed by defendants 1 & 2 and the sale deed has been executed with valuable consideration, if so its effect ? OPD
7) Whether the plaintiff is stopped by his act and conduct to file the present suit ? OPD
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8) Whether the present suit is not maintainable as present suit has been filed by plaintiff in connivance with defendants No.1 & 2, if so its effect ? OPD
9) Whether the plaintiff has not approached to the Court with clean hands and as such suit is liable to be dismissed with compensatory cost ? OPD
10) Relief.
Thereafter, during the pendency of the suit, an application was filed by the defendant-respondents for re-framing of the issues, which were eventually re-framed on 30.05.2016. The reframed issues are as under :
1. Whether the plaintiff is entitled to the relief of declarations as prayed for ? OPP
2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? OPP
3. Whether the suit is not properly valued for the purpose of court fee and jurisdiction as the plaintiff has not paid the requisite ad-valorem court fee and hence the plaint is liable to be dismissed ? OPD
4. Whether the plaintiff is in possession of any portion of the property ? OPP
5. Whether the plaintiff has no cause of action or locus standi to file the present suit ? OPD
6. Whether any fraud has been played by the defendant as alleged in the plaint and whether the power of attorney and sale deeds are the result of fraud and the sale deeds
3 of 10 ::: Downloaded on - 30-12-2022 22:54:21 ::: CR-5583-2019 (O&M) -4- are without valuable consideration as alleged by the plaintiff ? OPP
7. Whether the plaintiff is stopped by this act and conduct to file the present suit ? OPD
8. Whether the present suit is not maintainable as present suit has been filed by the plaintiff in connivance with the defendant number 1 and 2, if so its effect ? OPD
9. Whether the plaintiff has not approached the Court with clean hands and as such suit is liable to be dismissed with compensatory cost ? OPD
10. Relief.
When the case was at the stage of rebuttal and arguments, an application was filed by the plaintiff-petitioner under Order 14 Rule 5 CPC for framing of two additional issues, which read as under :
i.) Whether the plaintiff entered into oral agreement with defendant No.1 to sell his land, as alleged in para No.4 of the written statement ? OPD-1 ii.) Whether defendant No.1 is bonafide purchaser for value and without as alleged in para No.3 of the written statement ? OPD-1 The said application was contested by the defendant-respondents. Vide impugned order dated 26.08.2019 the application was dismissed. Aggrieved by the said order, the present revision petition has been preferred by the plaintiff-petitioner.
Learned counsel for the plaintiff-petitioner has contended that the defendant-respondents have raised the plea of bonafide purchaser and the ground 4 of 10 ::: Downloaded on - 30-12-2022 22:54:21 ::: CR-5583-2019 (O&M) -5-
that there was an oral agreement on the basis of which the power of attorney was executed and hence an issue ought to have been framed regarding whether there was oral agreement and as to whether defendant-respondent No.1 is a bonafide purchaser. It is further the contention that additional issues can be framed at any stage and the prayer cannot be declined only on the ground that parties had already led their evidence. In support of his arguments, learned counsel for the plaintiff-petitioner has relied upon the following judgments :
1. Hari Chand Vs. Krishan Kumar [1998 (3) RCR (Civil) 186];
2. Smt. Krishna Kanwar & Ors. [2016 (3) RCR (Civil) 895];
3. Sher Singh Vs. General Public [2001 (3) RCR (Civil) 780];
4. Sohrab Vs. Osaf & Ors. [2017 (2) Law Herald 1361];
5. Ratan Kumar Vs. State of UP [2018 (1) ADJ 6];
6. Gita Saran Singh Vs. Sabita Oberoi & Anr. [2016 (231) DLT 150];
7. Kalyan Singh Chouhan Vs. C.P. Joshi [2011 (1) RCR (Civil) 865];
8. Ramreshwari Devi & Ors. Vs. Nirmala Devi & Ors. [2011 (3) RCR (Civil) 932].
Per contra, learned counsel for the defendant-respondents has contended that the facts were well within the knowledge of the plaintiff- petitioner and infact a specific plea had been raised in the written statement qua an oral agreement as well as of defendant-respondent No.1 being a bonafide purchaser for consideration. It is further the contention that the issues were framed on two occasions. Originally the issues were framed on 04.08.2014 and thereafter the issues were re-framed on 30.05.2016. It is further contended that now at the time when the evidence of both the parties has been concluded and 5 of 10 ::: Downloaded on - 30-12-2022 22:54:21 ::: CR-5583-2019 (O&M) -6- the case is fixed for rebuttal and arguments, the present application has been moved. Learned counsel has further argued that both the parties have concluded their evidence and knew about the case of each other and there would be no ground for framing of additional issues. In support of his arguments, learned counsel has relied upon the following judgments :
1. Paramjit Kaur Vs. Surinder Singh [2011 (17) RCR (Civil) 563;
2. Nedunuri Kameswaramma Vs. Sampati Subba Rao [AIR 1963 SC 884];
3. Dera Baba Budh Ram & Ors. Vs. Mahabir Singh [2014 (30) RCR (Civil) 127];
4. Norata Singh & Anr. Vs. Angrejo alias Geju & Anr. [1978 PLJ 327];
5. Smt. Kamla & Anr. Vs. Bhoop Singh & Anr. [2010 (5) RCR (Civil) 674];
6. Chand Singh Vs. Gurdit & Ors. [2019 (1) PLR 55].
Heard.
In the present case Issue No.1 as framed on 30.05.2016 is "Whether the plaintiff is entitled to the relief of declarations as prayed for ? OPP" and Issue No.6 as framed reads "Whether any fraud has been played by the defendants as alleged in the plaint and whether the power of attorney and sale deeds are the result of fraud and the sale deeds are without valuable consideration as alleged by the plaintiff ? OPP". Both these issues would cover the issues which are now sought to be additionally framed. The question of whether the plaintiff-petitioner ever entered into an oral agreement on the basis of which the sale deeds were executed would be covered under the said issue.
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CR-5583-2019 (O&M) -7-
The issue whether the defendant-respondent No.1 is a bonafide purchaser for valuable consideration would also be covered in Issue Nos.1 and 6.
There can be no quarrel with the law laid down in the judgments relied upon by the learned counsel for the plaintiff-petitioner. It is trite that additional issues can be framed at any point of time. However, in the present case the issues were initially framed on 04.08.2014 and thereafter re-framed on 30.05.2016. At both times the plaintiff-petitioner did not claim any further issues. The controversy in the present case has always been, which both the parties were aware of, as to whether there was any oral agreement to sell. Further, both the parties were aware of the fact that defendant-respondent No.1 had claimed to be a bonafide purchaser by leading evidence on issue Nos.1 and
6. As such, all evidence as available would have been led by both the parties.
Learned counsel for the plaintiff-petitioner has also not been able to show as to what additional evidence he would lead in the event of the two additional issues being framed. A perusal of the application for framing of additional issues shows that the same is also bereft of any details as to what evidence the plaintiff-petitioner wishes to lead which could not have been led in the event of non-framing of the additional issues.
The Supreme Court in the case of Nedunuri Kameswaramma (supra) has held as under :
"6. On the first point, we do not see how the suit could be ordered to be dismissed, for, on the facts of the case, a remit was clearly indicated. The appellant had already pleaded that this was jeroyti land, in which a patta in favour of her predecessors existed, and had based the suit on a kadapa, which showed a sub-tenancy. It was the respondent who had 7 of 10 ::: Downloaded on - 30-12-2022 22:54:21 ::: CR-5583-2019 (O&M) -8- pleaded that this was a Dharmila inam and not jeroyti land, and that he was in possession of the kudiwaram rights though his predecessors for over a hundred years, and had become an occupancy tenant. Though the appellant had not mentioned a Karnikam service inam, parties well understood that the two cases opposed to each other were of Dharmila Sarvadumbala inam as against a Karnikam service inam. The evidence which has been led in the case clearly showed that the respondent attempted to prove that this was a Dharmila inam and to refute that this was a Karnikam service inam. No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer. We therefore, proceed to consider the central point in the case, to which we have amply referred already.".
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In the case of Kanan (dead) by LRs & Ors. Vs. V.S.Pandurangam (dead) by LRS & Ors. [2008 (1) RCR (Civil) 193] it has held as under :
"11. By a series of decisions of this Court it has been settled that omission to frame an issue as required under Order 14, Rule 1 Civil Procedure Code would not vitiate the trial in a suit where the parties went to trial fully knowing the rival case and led evidence in support of their respective contentions and to refute the contentions of the other side vide Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 Supreme Court 884.
12. In Sayeda Akhtar v. Abdul Ahad, 2003(2) RCR (Rent) 213 it was held by this Court that even if no specific issue has been framed but if the parties were aware of that issue and have led evidence on it, the Appellate Court should not interfere with the findings of the trial Court. A similar view was taken in Kali Prasad Agarwalla and others v. M/s Bharat Coking Coal Limited and others, 1989 Supp (1) SCC 628 (vide paragraph 19) and in Shaikh Mahamad Umarsaheb v. Kadalaskar Hasham Karimsab and others, AIR 1970 Supreme Court 61 (vide paragraph 9) as well as in several other decisions."
The case is now at the stage of rebuttal and arguments and the application appears to have been filed only to fill up the lacunae in the case.
In view of the above, no ground is made out to interfere in impugned order dated 26.08.2019. This Court finds no error of law or 9 of 10 ::: Downloaded on - 30-12-2022 22:54:21 ::: CR-5583-2019 (O&M) -10- jurisdiction by the Trial Court while passing the impugned order. The present revision petition being devoid of any merits is accordingly dismissed. Pending applications, if any, also stand disposed of.
Dismissed.
28.09.2022 (ALKA SARIN) tripti JUDGE
NOTE : Whether speaking/non-speaking : Speaking Whether reportable : YES/NO 10 of 10 ::: Downloaded on - 30-12-2022 22:54:21 :::