Mohinder Singh vs Sukhbir Singh

Swatanter Kumar, J.—After hearing the learned counsel for the petitioner on 30.10.1998 the Court had reserved the case for pronouncement of the order. However, on reading of the judgment cited by the learned counsel of the petitioner in the case of Anil Kumar V. Ranbir Singh, 1988(2) PLR 510,I was of the considered view that this case requires consideration and the observations of the Division Bench had a direct bearing on the impugned order. Resultantly, notice was issued to the other party. As per the report of the Registry service was complete for 14.1.1999 but nobody appeared on behalf of the respondent. The matter was adjourned to 22.2.1999. On the date I had heard learned counsel for the petitioner but as nobody appeared on behalf of the respondent, the matter was adjourned to 8.3.1999 and then again for 9.3.1999. However, nobody appears on behalf of respondent today again.

Vide order dated 11.19.1998 passed by the learned Civil Judge (Junior Division) Amritsar. the application filed by the defendant applicant under Order 14 Rule 5 of the CPC for framing of additional issues was dismissed.

Sukhbir Singh, the plaintiff, had filed a suit for specific performance with possession of the agreement to sell dated 24.1.1997 in relation to the property in dispute which was agreed to be sold to him for a total sum of Rs.95,000/- and further praying for a direction to the defendant to execute a sale deed in his favour. The suit was contested by the defendant and one of the pleas taken in the written statement by the defendant was that agreement was not executed by the defendant in favour of the plaintiff and in alternative it was stated that the property in dispute is ancestral Hindu Undivided Family and Co-parcenary property. As such the defendant, in any case, has no right to sell the property in question except for legal necessity of the family. After the issues were framed and the case was fixed for evidence, the application for framing the additional issues with regard to the legal necessity of the family to sell the property, co-parcenary in nature, was filed. However, the learned trial Court rejected the said application, while making the following observations:

"Although in his written statement a plea has been taken by the defendant that the suit land is an ancestral HUF property and it could not be sold except legal necessity, but the parties are not at issue in this regard. The defendant can take the plea of ancestral nature of the property in defence of issue No. 1 but he cannot claim any issues on this aspect. Moreover, if the proposed issue is framed it could sidetrack the main controversy and as such cannot be framed. Hence finding no merit in the application the same is dismissed."

The above observations of the learned trial Court are contrary to the law settled by Division Bench of this Court in the case of Anil Kumar (supra), while relying upon the judgment of Hon''ble the Supreme Court in the case of Shri Manik Chand and Another Vs. Shri Ramchandra, , where the Court observed as under:

"The defendant specifically look up the plea that the alleged transaction was not in the benefit of the family. In spite of that plea taken in the written statement, in the replication filed by the plaintiffs, it was not asserted that the transaction of sale was in fact in the benefit of family."

As the Division Bench of this Court considered appropriate that such plea would be permitted to be raised and decided, I sitting in single, is bound by the observation of the Division bench and thus would apply the principle settled to the facts of the present case. There is apparently no dispute to the effect that such a plea was raised and parties were at issue. Resultantly. I have no option but to set aside the order dated 11.9.1998 and would request the learned trial Court to frame the additional issues, as prayed for, upon allowing the application filed under Order 14 Rule 5 of the CPC limited to the extent aforesaid.

With the above observations, this revision petition is allowed: However, there shall be no order as to costs.