Rakesh Kumar vs Narinder Kumar and Another

Ram Chand Gupta, J.

C.M. No. 4757-CII of 2011

Application is allowed subject to all just objections.

Civil Revision No. 1140 of 2011

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 22.12.2010, passed by learned Civil Judge, Junior Division, Barnala, vide which application filed by Petitioner for framing the additional issue in the matter regarding the passing of final decree, on the basis of preliminary decree, passed in favour of Respondent-Plaintiffs has been dismissed.

I have heard learned Counsel for the Petitioner and have gone through the whole record carefully including the impugned order passed by learned Executing Court.

Facts relevant for the decision of present revision petition are that a preliminary decree for possession by way of partition was passed in favour of Respondents and against the present Petitioner-Defendant on 27.9.2000. In pursuance to the same, application for passing final decree was filed by decree-holder on 24.3.2003. Reply to the same was filed by present Petitioner and the following issues were framed by learned trial Court:

Whether the applicant is entitled to final decree in this case?

Relief.

Thereafter, two applications were filed by the present Petitioner including the application for framing of additional issue, which were dismissed by learned Executing Court vide order dated 28.10.2010, Annexure P5. Another application was filed by Petitioner-judgment debtor, Annexure P6, for framing additional issue, which was dismissed vide order dated 22.12.2010 by observing as under:

On 11.11.10, Respondent No. 2 moved application for framing additional issue to the effect as to whether Respondent No. 2 is entitled to recover Rs. 10 lac from applicant and Respondent No. 1. Learned Counsel for applicant submitted that applicant is moving frivolous applications to delay the matter and he does not want to file the reply.

Heard. It is pleaded in the application that the issue as referred to above is necessary to be framed and the application may be allowed. Learned Counsel for applicant orally opposed the contents of the application.

On the last date of hearing, two applications moved by Respondent No. 2 were decided and one of which was regarding framing of issue in the present proceedings regarding passing of final decree and which was dismissed observing that the issues already framed comprehensively embodied the entire aspect of the matter regarding which Respondent shall lead his evidence taking all his pleas to dislodge the case of applicant and therefore there arises no necessity for framing additional issue in the present proceedings regarding passing of final decree and same seems to be the logical fate of instant application. As a result, the application is dismissed.

No evidence of Respondent is present despite last opportunity. However, in the interest of justice and subject to cost of Rs. 500/-one more opportunity is granted to Respondent to conclude the evidence for 22.2.2011.

A perusal of the aforementioned order shows that Petitioner-judgment debtor is delaying the present execution petition and obstructing the passing of final decree by filing one application or the other instead of leading evidence, as directed by learned Executing Court.

Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned Executing Court in passing the impugned order and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and Ors. 2004 (1) RCR 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby.

Hence, the present revision petition is hereby dismissed being devoid of any merit.