Narendra Kumar Rathi vs Ravindra Modi

U.C. Maheshwari, J.

Heard on the question of admission.

The petitioner/defendant/tenant has filed this petition under Article 227 of the Constitution of India for issuing appropriate writ in the nature of certiorari to quash and set aside the impugned order dated 31.7.2012 (Annx. P/10) whereby his application filed for recalling the order dated 27.7.2012 extending opportunity to the plaintiff to adduce additional evidence on newly framed additional issue No. 8 relating to non-availability of the alternate accommodation to the respondent for the alleged need in the same town, has been dismissed. The petitioner''s counsel after taking me through the averments of the petition as well as the papers placed on the record along with the impugned order by referring the issue framed earlier so also the additional issues which were framed on 27.7.12 specially the additional issue No. 8 argued that with respect of the question of non-availability of the alternate accommodation with the respondent/plaintiff in the same town, such question was covered in issue No. 7 framed earlier at the initial stage of the case and in the light of such issue No. 7 the respondent has already adduced his evidence and, therefore, even on framing the additional issue No. 8 there was no necessity to extend the opportunity to the respondent to adduce the additional evidence on such additional issue No. 8. In continuation, he said that in any case the plaintiff has adduced his evidence in the matter keeping in view the pleadings of the parties and, in such premises also the trial court has committed grave error in extending such opportunity to adduce the additional evidence to the respondent on the newly framed issue and prayed to set aside the impugned order till the aforesaid extent by admitting and allowing this petition. In support of his contention he placed his reliance on a decided case of this court in the matter of Ganpat Rao Vs. Ashok Rao and Others,

Having heard, keeping in view the arguments advanced by the counsel, I have carefully gone through the record of this petition. It is apparent fact that at the time of framing the issues at initial stage before recording the evidence of respondent, no issue was framed by the trial court on the pleadings of the parties regarding non-availability of the alternate sufficient accommodation with the respondent/plaintiff for the alleged need in the same town and, therefore, to rectify such mistake in the light of the existing pleadings of the parties, the trial court after recording the evidence of the respondent/plaintiff has framed the aforesaid additional issue No. 8. Long before this court in the matter of The Dun Construction Company Vs. The Laxmi Bank Ltd. 1959 JLJ short note-2, has decided that the trial court is duty bound to frame the correct issues in the light of the pleadings of the parties under Order 14 rule 1 and 5 of the CPC. In such premises on examining the matter, I have not found any error in framing the additional issue No. 8 by the trial court. Pursuant to it, if after framing such additional issue, in order to extend the opportunity to adduce the additional evidence to the respondent/plaintiff on such issue has been given by the trial court then such order could not be said to be contrary to any law. It is settled proposition of the law that whenever in pendency of the suit before the trial court any amendment is carried-out or any new or additional issue in the light of the existing pleadings of the parties is framed then subsequent to framing such issue if such issue is related to the factual matrix of the matter then the court is bound to extend the opportunity to both the parties to adduce their separate evidence in that regard. In such premises, I am of the considered view that the trial court has not committed any error in extending the opportunity to adduce the evidence to the respondent/plaintiff after framing the aforesaid additional issue No. 8 even after closing the evidence of the respondent/plaintiff.

So far the case law in the matter of Ganpat Rao (supra) cited on behalf of the petitioner''s counsel is concerned, it is suffice to say that such case was decided at the appellate stage, taking into consideration that even in the lack of the issue the parties had adduced their ample evidence before the trial court and, in such premises, it was held that even in the absence of the issue, the available evidence is sufficient to consider and adjudicate the matter and such case was decided. But in the case at hand the suit is still pending before the trial court and by rectifying the earlier mistake, the trial court after framing the additional issue, has extended opportunity to the respondent/plaintiff to adduce the additional evidence then it could not be said that the trial court has committed any fault in passing the impugned order. So, in such premises, the case law cited on behalf of the petitioner''s counsel is not helping to the petitioner. Consequently, this petition being devoid of any merits is hereby dismissed at the initial stage of motion hearing.