Raghbir Singh vs Kapoor Singh

M.M. Kumar, J.—Code of Civil Procedure, 1908 (for brevity, the ''Code'') challenges the order dated 29.5.2003, passed by Civil Judge (Senior vision), Charkhi Dadri, dismissing the application of the plaintiff-petitioner filed under Order 14 Rule 5 of the Code in which prayer was made for framing of an additional issue by keeping in view the pleadings mentioned in para 1 of the plaint as well as of the written statement. The application has been dismissed primarily on the ground that on 16.10.2002 an application filed by the plaintiff-petitioner for adducing additional evidence was dismissed and the plaintiff-petitioner intended to achieve same object by filing this application. The order of the Civil Judge reads as under:-

"It is rightly argued by the learned Counsel for the defendant that when plaintiff has already led evidence, then application for reframing issue and strike of issue No. 1 is not maintainable. A perusal of order dated 16.10.2002 shows that application of the plaintiff for additional evidence was dismissed. It was further observed in that order that plaintiff is negligent and no plausible reason was assigned by him as to why draftsman could not be produced earlier. Thus, it was held that there was no due diligence on behalf of the plaintiff. The aim of the plaintiff by why (way of?) this application appears to lead evidence by framing additional issue, A perusal of order dated 28.9.1998 shows that proper issue has been framed. The case of the plaintiff is simplicitor suit for injunction. The issue regarding ownership of the suit property is squarely covered under issue No. 1 and there is no necessity to frame separate issue. Hence, this present application is dismissed."

After hearing the learned counsel at a considerable length, I do not find any legal infirmity in the order passed by the Civil Judge. A perusal of the order shows that process of law is stated to be misused by the plaintiff-petitioner which would unnecessarily result info delay of the disposal of the case. Even otherwise the interference by this court would not result into disposal of the suit which is the basic test for exercise of jurisdiction u/s 115 of the ''Code'' as held by the Supreme Court in the case of Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, Therefore, there is no merit in this petition which is consequently dismissed.