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SURENDRA PAL SINGH versus CHANDER PRAKASH & OTHERS

High Court of Judicature at Allahabad

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Surendra Pal Singh v. Chander Prakash & Others - CIVIL REVISION No. 365 of 2005 [2005] RD-AH 4848 (25 October 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

"Court No. 4"

Civil Revision No. 365 of 2005.

Surendra Pal Singh                                                                             ..........Plaintiff/

                                                                                                                 Revisionist.

Versus

Chander Prakash and others                                                            ....Respondents.

................

Hon'ble Anjani Kumar, J.

Heard learned counsel appearing on behalf of the revisionist-plaintiff.

By means of present revision under Section 115 of the Code of Civil Procedure, the revisionist-plaintiff challenges the order dated 7th October, 2005, passed by the trial Court, whereby the trial Court has refused to frame the additional issues as prayed for by learned counsel for the plaintiff and rejected the application 73 C2 filed by the revisionist.

The brief facts of the present case are that the plaintiff-revisionist filed suit before the trial Court.  The trial Court after hearing learned counsel for the parties have framed the following issues in presence of the learned counsel for the parties, :-

"1. Whether the plaintiff is owner of the property in suit by way of adverse possession as alleged in para 8 of the plaint ?

2. Whether the plaintiff is in possession of he property in suit as alleged in the plaint ?

3. Whether the constructions and fixtures existing on the property in suit belonged to defendant no. 4 and the plaintiff was mere licensee thereof, if so, its effect  ?

4. To what relief, if any, the plaintiff is entitled ?"

Learned counsel appearing on behalf of the revisionist-plaintiff produced certified copy of the order sheet dated 5th July, 2005.  A perusal of the order dated 5th July, 2005 clearly demonstrate that all the issues were framed in the presence of learned counsel for the parties and no other issues were pressed by any party, including the revisionist-plaintiff.  It appears that subsequent to the framing of the issues, the plaintiff filed an application purporting to an application under Order XIV, Rule 5, read with Section 115 of the Code of Civil Procedure, in which it has been prayed with the following observation :-

"At the time of framing of Issues on 5.7.2005, the counsel for the plaintiff requested the learned court to frame correct and relevant Issues arising out of the pleadings of the parties, but the learned court omitted to frame the relevant issues arising out of the pleadings of the parties.  The Court appears to be biased against the plaintiff.  For the judicious and fair trial of the suit, it is necessary that the following Issues arising from the pleadings be framed :-

1) Whether Caltex India took the property in question on Lease from Chattar Sain Jain and made constructions thereon ?

2) Whether Defendant No. 4 became the tenant in actual possession of the property in question after the acquisition of Caltex India by Defendant No. 4 ?

3) Whether Defendant No. 4 is the tenant in actual possession of the property in Suit, which he took for the period 1.8.1993 to 31.7.2018 ?"

This application, which has been numbered as 73 C2, has been rejected by the order impugned in the present revision.  The provisions of Order XIV, Rule 5 of the Code of Civil Procedure are reproduced below :-

"Order XIV. Settlement of issues and determination of suit on  issues of Law or on issues agreed upon.

5. Power to amend and strike out issues.----

(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.

(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced."

By the order impugned in the present revision, the trial Court have clearly observed that proposed issue nos. 1 to 3 relate to the dispute between the defendant nos. 1 to 3 and 4 to 6, thus in the opinion of the Court issues mentioned in the application 73 C2 are not necessary and are irrelevant for the purposes of the case as the proposed issues are inter-se between the defendant nos. 1 to 3 and 4 to 6 regarding determination of the lease and raising of constructions by defendant no. 4 and it is the suit against the defendants on the basis of adverse possession, therefore these issues are neither relevant, nor necessary to be framed.

Having heard learned counsel appearing on behalf of the plaintiff-revisionist and having gone through the impugned order passed by the trial Court as well as provisions of Order XIV, Rule 5 of the Code of Civil Procedure, I am in full agreement by the order passed by the trial Court rejecting the application 73 C2.  Thus, the order impugned in the present revision, in my opinion, does not warrant any interference by this Court in exercise of jurisdiction under Section 115 of the Code of Civil Procedure.

In view of what has been stated above, this revision has no force and is accordingly dismissed.

Dated: 25.10.2005.

Rks.


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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