Madhya Pradesh High Court
Kamlesh Sapre vs Raghuvar Dayal on 11 January, 2018
1
HIGH COURT OF MADHYA PRADESH
MP No.1463/2017
(Kamlesh Sapre & Others v. Raghuvar Dayal)
Gwalior, Dated : 11.01.2018
Shri D.D. Bansal, learned counsel for the petitioners.
Shri G.P.Chaurasia, learned counsel for the
respondent.
Heard.
Petitioners, who are defendants before the trial Court, have filed this petition being aggrieved by order dated 13.11.2017 passed by the Court of Civil Judge Class- II, Kurwai, District Vidisha in Civil Suit No.37-A/2012, whereby the trial Court after closure of the evidence of the plaintiff has allowed plaintiff's application under Order 14 Rules 1, 3 4, and 5 of the Code of Civil Procedure and has deleted the issues framed earlier and has framed 07 new issues and has fixed the case for evidence of the defendants on the grounds not permissible under the law.
2. Learned counsel for the petitioners submits that the impugned order is illegal and the Court below has erred in entertaining the application of the plaintiff after closure of plaintiff's evidence and after filing of the affidavits of chief examination by the defendants. It is submitted that since the plaintiff has sought decree of possession on the basis of the ownership, therefore, the issues were correctly framed and the issues so framed on 12.12.2013 were already in the knowledge of the plaintiff, but after closing his evidence has moved an application for deletion of earlier issues and framing of additional issues, which is not permissible under the law. He has placed reliance on the judgment of this Court in the case of Virja v. Jumma as 2 HIGH COURT OF MADHYA PRADESH MP No.1463/2017 (Kamlesh Sapre & Others v. Raghuvar Dayal) reported in 1989 (2) WN 155, in which the ratio is that if the additional issues are framed, the parties should be given opportunity to adduce evidence.
3. On the other hand, the learned counsel for the plaintiff submits that the plaintiff had filed a suit for eviction of the tenant and for recovering possession of the suit property and recovery of mesne profits. This fact can be seen from the relief clause in which he sought payment of rent and compensation of Rs.25,000/- and mesne profit of Rs.1,000/-. It is submitted that earlier the issue was framed to the effect that whether the plaintiff is the owner of the suit property mentioned in the enclosed map; whether the defendants have illegal possession over the suit property; and whether the plaintiff is entitled to receive a sum of Rs.8,000/- from the defendants. It is submitted that these issues did not cover the aspect of relationship between the plaintiff and the defendants as that of landlord and tenant and also whether the plaintiff had served a legal notice seeking recovery of rent and act of the defendants in not paying the said rent. Consequently, the application was moved and the trial Court admitted that since the suit has been filed seeking a decree under Section 12 (1) (a), 12 (1) (c) and 12 (1) (e) of the M.P. Accommodation Control Act and the issues framed earlier were not in accordance with the provisions contained in aforesaid sections, therefore, the trial Court deleted those issues and framed fresh issues in place of 3 HIGH COURT OF MADHYA PRADESH MP No.1463/2017 (Kamlesh Sapre & Others v. Raghuvar Dayal) the earlier issues.
4. Learned counsel for the plaintiff-respondent submits that the provisions contained in Order 14 Rule 5, CPC gives ample power to the Court to amend the issues or frame the additional issues before passing a decree and also to strike out any issues that appear it to be wrongly framed or introduced before passing as decree and, therefore, the contention of the petitioners that framing of such issues was not mandated, is contrary to the scope and object of the Act. It is submitted that the object of framing of issues is to help the Court in regulating the proceedings but also to enable the parties to point their attention onto the actual controversy as reflected in the issues. Thus, the Parliament in its wisdom has made a provision for such amendment of issues and striking of the issues and mere delay in moving an application for framing of an issue cannot come in the way of just trial inasmuch as it is the duty of the Court to frame issues as per pleadings. The Court can in fact recall the issues and frame additional issues. If it is necessary for determining the matter in controversy between the parties, it is obligatory on the Court under second portion of sub-rule (1) of Rule (5) of Order 14, CPC. This legal position can be seen from the ratio as laid down in the cases of Indira Madani v. Hola Ram as reported in AIR 2003 Delhi 49 and M/s. Unitech Industrial Corporation & Another v. M/s. Arvind Engineering Co. as reported 4 HIGH COURT OF MADHYA PRADESH MP No.1463/2017 (Kamlesh Sapre & Others v. Raghuvar Dayal) in AIR 2001 AP 177.
5. In the case of Raja Virbhadra Singh v. M/s. Roshanlal Kuthiala & Others as reported in AIR 1975 HP 13, it has been held that it is obligatory on the Court to frame issues if the issues already framed do not clearly bring out the points in controversy between the parties. Thus, in view of such legal pronouncements, this Court is of the opinion that the earlier issues since did not answer actual controversy between the parties, therefore, the additional issues have been rightly framed after striking of the earlier issues and that will since not cause any prejudice to the parties specially the petitioners- defendants, who have yet to lead their evidence, the impugned order does not call for any interference. Thus, the petition fails and is hereby dismissed.
Certified copy as per rules.
(Vivek Agarwal) Judge meh/-
MEHFOOZ AHMED 2018.02.05 16:40:49 +05'30'