Madan Talwar vs Om Prakash Sharma

Sharad Kumar Sharma, J.

The plaintiff respondent had instituted a Suit, being Suit No. 138 of 2015, O.P. Sharma Vs. Madan Talwar on 20th March, 2015, wherein, he has

prayed for a grant of decree for recovery of an amount of Rs.40,00,000/- along with interest. The relief as prayed for is quoted hereunder :-

“23. ;g fd ekuuh; U;k;ky; ds {ks=kf/kdkj gsrq okn dk ewY;kadu :I;s 40]00]000@& ¼:I;s pkyhl yk[k dsoy½ ij fd;k tkdj fu;r U;k; “kqYd vnk

fd;k tkrk gSA vr% oknh fuEu izkFkZuk djrk gSA

1- ;g fd oknh dk okn :i;s 40]00]000@& ¼:I;s pkyhl yk[k dsoy½ dh olwyh gsrq izfroknh ds fo:} fMdzh djus dh d`ik djsaA rFkk ;g /kujkâ€kh izfroknh

ls] mldh lEifRr ftldk fooj.k okn i= esa fn;k gS rFkk mlds ikl tks Hkh vpy o py lEifRr ik;s tkos mlls olwy djus dk vknsâ€​k djus dh d`ik djsaA

2- ;g fd oknh dks mDr /kujkfâ€​k ij C;kt nj 15 izfrâ€​kr okf’kZd ds nj ls okn izLrqr djus ls ysdj mly olwyh rd fMdzh djus dh d`ik djsaA

3- ;g fd oknh dk okn izfroknh ds fo:} lO;; fMdzh djus dh d`ik djsaA

4- oknh lkFk lkFk ;k fodYi es dksbZ vU; izfrdkj ikus dk vf/kdkjh gks rks mls Hkh iznku djus dh d`ik djsaAâ€​

On exchange of pleadings, the learned Trial Court has framed as many as eight issues vide its order dated 26th November, 2015. At this stage, for the

purposes of controversy as involved in the Writ Petition, the relevance would be only with regard to the issue No. 1, 4, 5 and 6, which have been

deleted by the impugned order dated 09.03.2017 on the application filed by the plaintiff and an additional issue has been framed.

The framing of an issue, its addition or its striking off, is based on the pleadings of the parties to the proceedings, it is to be considered by the Court

seized with the Suit and to determine as to which issue is necessary for the purposes of adjudication of a case. If an appropriate issue is not sought to

be framed or proposed, in particular, by plaintiff to sustain his suit, it is rather in fact the plaintiff who has to suffer with the ultimate consequence,

which he may face, on account of non framing of an appropriate issue. The defendant, who is opposing a motion of a suit in the absence of there

being an counter claim under Order 8 Rule 6-A of the C.P.C. has only to defend a right of his. In such a circumstance, framing or non framing of an

appropriate issue by invocation of Sub-Rule (5) of Rule 1 of Order 14 of the C.P.C. would be an exclusive prerogative of the plaintiff and the Court.

In the case, in hand, after framing of the issue by the learned Trial Court on 26th November, 2015, the plaintiff by his application dated 1st March,

2016, had sought a deletion of issue Nos. 1, 4, 5 and 6 and had sought framing of the following issue:-

“D;k izfroknh ds }kjk viathd`r bdjkjukes ls dfFkr /kujkfâ€​k oknh ls izkIr dh gS rks mldk izHkko \â€​

This application was opposed by the defendant, however, learned Trial Court by the order dated 9th March, 2017, had allowed the application, paper

No. 43-C and, consequently, permitted the deletion of the issue and framing of an additional issue.

Being aggrieved against this, the defendant/petitioner preferred a recall application by invoking Section 151 of the C.P.C. which too has been rejected

by the impugned order dated 17th August, 2018. It is these two orders, which are impugned in the present Writ Petition.

If the language of Order 14 is taken into consideration, in its true spirit, the precaution of formulation of an appropriate issue is to be taken care of by

the person who has to sustain a claim in a proceeding. In an event, if he chooses not to press an issue which has already been framed, its effect would

obviously have to be borne by him and, at least, the defendant cannot have any say in the matter, when, more particularly, he has not come forward

raising any counter claim to the contrary by invoking Order 8 Rule 6-A of the C.P.C. in the proceedings of the suit.

Apart from it, the reasons which have been assigned by the learned Trial Court, while allowing the application of the plaintiff, it has been observed that

since the suit being exclusively for recovery of the amount, the issues pertaining to prayer Nos. 1, 4, 5 and 6 are not relevant and necessary for the

adjudication of the suit itself. If at all, there could be any grievance by this order, whereby, Trial Court has held that issue Nos. 1, 4, 5 and 6 already

framed, not relevant for adjudicating the suit, at least, it could be only the plaintiff and under no set of circumstances, the petitioner who is deponent,

could have any grievance.

Consequently, this Court does not find any merit in the Writ Petition. Accordingly, the Writ Petition is dismissed.

However, there would be no order as to costs.