Punjab-Haryana High Court
Tikka Amar Singh vs Mohan Singh And Others on 6 September, 2011
Author: L.N. Mittal
Bench: L.N. Mittal
Civil Revision No. 5200 of 2011 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No. 5200 of 2011
Date of decision : September 06, 2011
Tikka Amar Singh
....Petitioner
versus
Mohan Singh and others
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. DS Bali, Senior Advocate with
Mr. Avtar Krishan, Advocate, for the petitioner
L.N. Mittal, J. (Oral)
Plaintiff Tikka Amar Singh has filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 4.8.2011 passed by learned Additional District Judge, Panchkula thereby dismissing application moved by the petitioner under Order 41 Rule 23-A of the Code of Civil Procedure (in short, C.P.C.).
Suit filed by the petitioner has been dismissed by learned Civil Judge (Senior Division), Panchkula vide judgment and decree dated 30.8.2010, Annexure P/1. Petitioner has filed first appeal against said judgment and decree of the trial court. During pendency of the first appeal, petitioner-appellant moved application under Order 41 Rule 23-A read with Civil Revision No. 5200 of 2011 -2- section 151 CPC alleging that the trial court while passing final judgment dated 30.8.2010 framed three additional issues and decided the suit without affording opportunity to the plaintiff to lead evidence on the said additional issues and therefore, the suit was required to be remanded to the trial court for fresh decision after affording opportunity of leading evidence on additional issues. The said application has been dismissed by learned lower appellate court by way of impugned order which is under challenge in the instant revision petition.
I have heard learned counsel for the petitioner and perused the case file.
Learned counsel for the petitioner reiterated the aforesaid contention that the trial court framed additional issues while passing final judgment and decided the suit without affording opportunity of leading evidence and therefore, the suit is required to be remanded for fresh decision after affording opportunity of leading evidence. Reliance in support of this contention has been placed on judgment of Karnataka High Court in Perikal Malappa v. T.Venkatesh Gupta, 2006(4) Civil court Cases 320. Reference has also been made to judgment of this Court in Rattan Bala v. Kiran Bala and others, 2011(2) PLR 637. In that case additional issues placing the onus on defendants were framed after the plaintiff had led his evidence. The plaintiff was not allowed to lead evidence in rebuttal regarding said issues. It was held that plaintiff could not be stopped from examining witnesses in rebuttal on the said issues, the onus of which was on the defendants.
Civil Revision No. 5200 of 2011 -3-
I have carefully considered the aforesaid contention but find myself unable to accept the same in the facts and circumstances of the instant case. Following issues were framed in the suit on 26.11.1999:-
"1. Whether plaintiff is entitled to decree of declaration, as prayed for? OPP
2. Whether suit is not maintainable in the present form? OPD
3. Relief."
Plea of the petitioner is that following three additional issues were also framed by the trial court in the final judgment:-
"1. Whether the plaintiff belong to the family of Cis Satluj Jagirdars of Ramgarh.
2. Whether the suit property is part & parcel of Jagir Estate/Cis Satluj Jagir.
3. Whether the rule of primogeniture is applicable to the suit property."
However, perusal of the judgment of the trial court reveals that aforesaid additional issues have not been framed. On the contrary, while discussing issue no. 1 framed on 26.11.1999, the trial court for convenience and clarity framed points for determination which are being referred to as additional issues by the petitioner. In fact, these are not additional issues framed by the trial court. On the contrary, these are only points for determination arising from the arguments advanced before the trial court. These points arise under issue no. 1 already framed in the suit. Said issue no. 1 is of wide amplitude and all pervasive and covers all the aforesaid three points for determination. On bare reading of judgment of the trial Civil Revision No. 5200 of 2011 -4- court in this regard, it cannot be said that additional issues have been framed. On the contrary, trial court recorded finding on issue no. 1 by determining three points arising under the said issue. No additional issues were framed. Consequently, judgment in the case of Perikal Malapa (supra) is not applicable to the facts of the instant case because in that case additional issues had been framed and therefore, it was essential to afford opportunity of leading evidence whereas in the instant case no additional issues were framed and therefore, opportunity of leading further evidence was not required to be afforded to the parties. Similarly, in the case of Rattan Bala (supra) additional issues had been framed after the plaintiff had led his evidence and therefore, the plaintiff was permitted to lead evidence in rebuttal on the said issues, onus of which was on the defendant. Consequently, both these judgments are not applicable to the facts and circumstances of the case in hand.
It may be mentioned that the petitioner also moved application for additional evidence in the lower appellate court. The same was dismissed. The petitioner also moved application for framing of additional issues in the lower appellate court. The same was also dismissed. It was thereafter that the instant application was moved for remanding the suit. Thus, by moving the instant application, the petitioner wanted to get opportunity of leading additional evidence although petitioner's prayer for additional evidence had already been declined.
For the reasons aforesaid, I find no infirmity in impugned order of the lower appellate court so as to warrant interference in exercise of Civil Revision No. 5200 of 2011 -5- revisional or supervisory jurisdiction of this Court. The revision petition is devoid of merit and is accordingly dismissed in limine.
( L.N. Mittal )
September 06, 2011 Judge
'dalbir'