Mohan Sharma vs Suresh Gupta

Arun Bhansali, J.—This writ petition has been filed by the petitioner aggrieved against order dated 25.03.2015 passed by the trial court, whereby, the application filed by the petitioner-defendant under Order XIV, Rule 5 CPC seeking framing of additional issues has been rejected by the trial court.

The plaintiff-respondent filed a suit for recovery of a sum of Rs. 1,00,000/- as amount of cheques and interest of Rs. 15,375/- against the petitioner-defendant with the averments that the amount was lent to the petitioner and was not repaid.

A written statement was filed by the petitioner-defendant, inter alia, raising certain preliminary objections and denying the liability; it was, inter alia, claimed that the amount was not lent to the defendant but in fact was lent to one Nand Kishore Moolchandani and the cheques were given by the petitioner by way of collateral security; the amount of loan having been repaid by the said Nand Kishore Moolchandani, nothing was outstanding and, therefore, it was contended that the suit was liable to be dismissed.

Based on the pleadings of the parties, the trial court framed four issues on 22.11.2011, which read as under:--

Whereafter, the present application was filed on 18.02.2015 seeking re-framing of the issues and in the proposed issue No. 1, there were five sub issues. The proposed issues read as under:--

The trial court after hearing the parties came to the conclusion that issues were framed based on the pleadings of the parties; five issues proposed under issue No. 1 are already taken care of by issue No. 1; the issue pertaining to limitation has already been framed; the issue pertaining to Nand Kishore Moolchandani being necessary party does not arise from the pleadings of the parties; even regarding the proposed issue as to whether the plaintiff is involved in the business of lending money there were no averments and the burden of such a issue cannot be put on the plaintiff and came to the conclusion that the application was filed only with the purpose to delay the further proceedings in the suit and rejected the same imposing cost of Rs. 1000/-.

It is submitted by learned counsel for the petitioner that the trial court was not justified in dismissing the application filed by the petitioner; the proposed issues do arise in the present matter and are necessary for a fair disposal of the suit; it was emphasized that Nand Kishore Moolchandani was a necessary party to the suit, which aspect was very much emphasized in the written statement, however, the trial court has wrongly rejected the contentions raised in this regard by observing that no such plea was raised in the written statement; it was further submitted that the nature of business conducted by the plaintiff relates to money lending and, therefore, the issue regarding whether the plaintiff was involved in the business of money lending was also a necessary issue and the trial court was not justified in even denying the said legal issue; it was prayed that the petition be entertained.

Reliance was placed on judgments in the case of Girraj Prasad and Ors. v. Mirari Lal and Ors.: 1996 (2) RLW (Raj.) 569 , Venkatesh Shinde Vs. P. Rameshchand Bhandari and Others, (2006) 4 ALD 569 : (2006) 3 ALT 10 and Kisturi (Smt.) and Ors. v. Additional Civil Judge (Jr. Div.) No. 1, Sikar and Ors.: 2008 (3) DNJ (Raj.) 1382.

I have considered the submissions made by learned counsel for the petitioner and have perused the material placed on record.

A bare perusal of the issues proposed by the petitioner (quoted hereinbefore) clearly indicates that the petitioner has sought to bifurcate the issue No. 1 framed by the trial court into several issues; the issue No. 1 framed by the trial court encompass the entire controversy raised by the petitioner in the written statement and, therefore, the trial court was justified in coming to the conclusion that the several issues proposed by the petitioner are not required to be framed; the proposed issue Nos. 2 and 3 pertained to one Nand Kishore Moolchandani; while issue No. 2 as proposed has already been framed by the trial court, regarding the issue No. 3 as to whether the presence of Nand Kishore Moolchandi was necessary and in his absence the suit was not maintainable; though the trial court was not justified in coming to the conclusion that no plea in this regard was raised in the written statement, however, it would be observed that once a finding on issue No. 2 is recorded either ways, the presence of Nand Kishore Moolchandi would be wholly unnecessary, inasmuch as, if it is found under issue No. 2 that the cheques were issued by way of collateral security, the effect on the suit would be examined and if the issue is decided against the petitioner, then the presence of Nand Kishore Moolchandi would not at all be required. In that view of the matter, it cannot be said that the issue regarding presence of Nand Kishore Moolchandi was necessary and its non-framing has resulted in any illegality while framing the issues way back in the year 2011.

The other issue i.e. proposed issue No. 4 pertained to the minor bickerings raised by way of objections regarding non-indication of figures in words and alleged faulty verification, which aspect was not pressed by counsel for the petitioner during the course of the submissions before this Court besides the same, the non-framing of such immaterial issues do not go to the root of the matter.

So far as framing of issue pertaining to as whether the plaintiff was involved in the business of money lending is concerned, a bare look at the written statement indicates that there is no allegation and/or reference in this regard in the written statement; the ground raised in the writ petition indicates that the petitioner has sought to base his claim regarding the said issue on the basis that averments in the written statement means and indicates that the transaction is such which reflects that the respondent was involved in money lending and he had lent money to one Nand Kishore Moolchandi and, therefore, the issue does arise; suffice it to say that the plea raised regarding the issue of money lending arising by implication has no basis and the trial court was justified in coming to the conclusion that such a issue does not arise in the case.

In view of the above, it cannot be said that the trial court committed any error in rejecting the application filed by the petitioner, which was filed after four years of framing of the issues.

So far as the judgments cited by learned counsel for the petitioner are concerned, the judgment in the case of Girraj Prasad (supra) pertains to a case of pleadings about denial of title in an eviction matter, which it was held that was necessary for the orderly disposal of the suit; the said judgment has no application to the present case; the judgment of Andhra Pradesh High Court in the case of Venkatesh Shinde (supra) pertains to framing of issue pertaining to business of money lending, as already noticed hereinbefore, there is no objection/pleading of the petitioner regarding applicability of the money lending act/suit being barred under the said act and/or any other aspect in this regard and the argument in the present writ petition also pertains to a plea by implication in the written statement, which cannot be entertained.

Similarly the judgment in the case of Kisturi (supra) also pertains to specific pleadings in the written statement, which apparently are absent in the present case.

In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed.