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AVTAR SINGH versus MALKIAT SINGH & ORS

High Court of Punjab and Haryana, Chandigarh

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Avtar Singh v. Malkiat Singh & Ors - CR-2956-2005 [2006] RD-P&H 4307 (18 July 2006)

C.R.No.2956 of 2005 [1]

THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Civil Revision No.2956 of 2005

Date of Decision: July 24, 2006

Avtar Singh ........Petitioner

v.

Malkiat Singh and others ........Respondents CORAM: HON'BLE MR.JUSTICE P.S.PATWALIA
***

Present: Mr.K.S.Cheema, Advocate

for the petitioner.

Mr.Harsh Aggarwal, Advocate

for the respondents.

***

P.S.PATWALIA, J.

The present revision petition is directed against the order passed by the learned Civil Judge (Jr.Division), Dasuya whereby the request made by counsel for the petitioner-defendant for framing of an additional issue has been declined with the following observations:-

"So far as the request made by the counsel for defendant for framing of additional issue is concerned, no doubt that the defendant claimed himself the member of Hindu Undivided Family but no where pleaded by defendant that the house in dispute is an ancestral house of the defendant. So has been averred by the defendant for the first time in the application filed by him U/o 14 Rule 5 CPC. Even at the time of framing of issues, both the parties were present and no other issue was pressed by both the parties at that time. The C.R.No.2956 of 2005 [2]

defendant has already closed his evidence after examining two witnesses. So now at this stage he can not be allowed to reopen the case."

Learned counsel for the petitioner-defendant has pointed out that in fact he had specifically pleaded in para 2 of his written statement that the house was ancestral house of the petitioner-defendant. The relevant part of the reply is as hereunder:-

".....The said house is ancestral house of the defendant and being the son of the plaintiff. The defendant, is in possession over the said house. Correct site plan is attached herewith with the W.S." It is therefore contended that the request of the petitioner-defendant was declined on a factual premises which is against the record. Learned counsel further submits that in case this additional issue is allowed to be framed, he would lead his entire defence in one effective opportunity.

On the other hand, learned counsel for the respondent-plaintiffs submits that there is already an issue framed as to whether the petitioner-defendant is owner of the house which is subject matter of controversy in the suit. The petitioner-defendant could have led his evidence on that issue even to substantiate his claim that he was owner as the house was an ancestral house and he was the son of the petitioner-defendant.

After examining the whole controversy, I am of the opinion that the ends of justice would be secured if additional issue as prayed for by the petitioner- defendant is framed in view of the fact that the petitioner-defendant has specifically pleaded that the house is an ancestral house and he being the son of the respondent-plaintiff Karam Chand is entitled to possession over the same. The apprehension of the respondent-plaintiffs that the proceedings would linger on would be met by binding down the petitioner-defendant to lead all his evidence on this additional issue in one effective opportunity.

C.R.No.2956 of 2005 [3]

The portion of the order of the learned Civil Judge reproduced hereinabove is therefore set aside. The learned Civil Judge would now proceed to frame the issue as requested for by the counsel for the petitioner-defendant and thereafter proceed with the case. The petitioner-defendant shall, however, be given only one effective opportunity to lead his entire evidence on this issue.

The revision petition stands disposed of in the above terms.

( P.S.PATWALIA )

July 24th , 2006. JUDGE

RC


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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