Radheyshyam Mittal vs Kishori Sharan Agarwal and Another

R.S. Chauhan, J.—The petitioner is aggrieved by order dated 6.12.2012 passed by Addl. District Judge No. 5, Jaipur Metropolitan, whereby the learned Judge has dismissed the petitioner''s application under Order 14, Rule 5 read with Section 151 CPC for framing of an additional issue. The petitioner is also aggrieved by order dated 15.1.2014 passed by the learned Judge, whereby the learned Judge has dismissed the review application filed by the petitioner under Order 47, Rules 1 and 2 read with Sections 114 and 151 CPC for reviewing the order dated 6.12.2012.

The brief facts of the case are that the respondent-plaintiffs had filed a suit for recovery of arrears of rent, eviction and perpetual injunction against the petitioner-defendant on the ground of default, and bona fide necessity of plaintiffs'' son, Siyasharan Agrawal. The petitioner-defendant filed his written statement contesting the suit. On the basis of pleadings, issues were framed. The petitioner-defendant filed applications under Order 8, Rule 1(3) CPC for taking on record relevant documents, and under Order 6, Rule 17 CPC for amendment of his written statement for bringing on record his defence on the basis of events that took place during the trial. The said applications were allowed by two separate orders dated 28.11.2008 and 20.10.2009. The amended written statement was filed in pursuance of the aforesaid orders. The respondent-plaintiffs did not file any rejoinder to the amended written statement. Further, the learned trial court by its order dated 25.4.2009 dismissed the application of the petitioner-defendant for recalling of the plaintiffs'' witnesses to cross-examine them to the extent of amendments brought about in the written statement. By its judgment dated 2.11.2010 the learned trial court decided the suit wherein the benefit of first default was given to the petitioner-defendant. However, the suit was decreed on the ground of bona fide and reasonable necessity.

The petitioner-defendant filed a regular appeal against the judgment dated 2.11.2010, which is pending adjudication. In the appeal the petitioner-defendant filed an application under Order 14, Rule 5 read with Section 151 CPC for framing of additional issues with necessary amendments for complete adjudication of the actual dispute between the parties based on the pleadings. The respondent-plaintiffs orally contested the application. The learned appellate court dismissed the said application by order dated 6.12.2012. Hence, this petition before this Court.

Mr. Gaurav Sharma, the learned counsel for the petitioner, has vehemently contended that during the pendency of the suit, the plaintiff has sold another shop which belonged to him. Therefore, the petitioner-defendant had sought the amendment of his written statement for bringing the said fact on record. The learned trial court had permitted the petitioner to amend the written statement and the said fact was brought on record. During the pendency of the appeal the petitioner filed his application for framing of an additional issue with regard to the sale of the said shop by the plaintiff. However, without appreciating the facts by order, dated 6.12.2012 the learned Judge has dismissed his application. According to the learned counsel under Order 41, Rule 25 the learned Judge in fact should have framed the additional issue. In order to buttress his contention the learned counsel has relied on the case of State of Gujarat Vs. Jaipalsingh Jaswantsingh Engineers and Contractors, and on the case of Makhan Lal Bangal Vs. Manas Bhunia and Others, . Lastly, the learned Judge has dismissed the review application in a mechanical manner. Therefore, both the impugned orders deserve to be interfered with.

Heard the learned counsel for the petitioner and perused both the impugned orders.

During the course of the arguments the learned counsel has admitted to the fact that although the written statement was permitted to be amended, and to bring the fact that the second shop belonging to petitioner was sold by him on record, the plaintiff has not denied the said position. Moreover, the petitioner has not led any evidence with regard to the said fact. Once there was no denial by the plaintiff the said fact, obviously there was no dispute about the said fact. In the absence of a dispute between the parties, naturally an issue could not be framed. In both the cases relied upon by the learned counsel, both the Hon''ble Gujarat High Court as well as the Hon''ble Supreme Court are of the view that an issue needs to be framed only when there is a dispute between the parties with regard to the existence of a fact i.e. when one party asserts the existence of a fact, and the other party denies the very existence of the said fact. However, in the present case the position taken by the petitioner that another shop belonging to the plaintiff was sold by him, has not been denied by him. Thus, obviously no dispute arises between the parties with regard to the existence of the fact of sale of the shop by the plaintiff. Hence, there is no question of an issue being framed. Thus, neither of the two cases, referred by the learned counsel, rush to his rescue.

The learned counsel has also contended that the learned trial court has ignored the fact that another shop belonging to the plaintiff was sold by him, such a fact would affect the finding on the alleged bona fide necessity of the plaintiff. Even if that be so, even then it would not entail the framing of an issue. It is not for this Court to express its opinion as to how the said fact would or should affect the finding of the learned appellate court. For, it is a question to be decided by the appellate court which is seized of the matter presently.

Even the order dated 15.1.2014 passed by the learned Judge clearly shows that the learned Judge has given ample reasons for dismissing the review application.

Hence, this Court does not find any illegality or perversity in either of the two impugned orders. This petition being devoid of any merit, is hereby dismissed. Since the writ petition has been dismissed, the stay application too is hereby dismissed.