Ram Naresh vs Dr. S.C. Mittal

Sharad Kumar Sharma, J.

Petitioner before this Court is one of the defendant in a Suit, who was substituted after death of his predecessors. The plaintiff respondents, being

predecessors, filed Suit Suit No. 243 of 1983, G.D. Mittal and another Vs. Bhikhari Lal. The said suit was for relief of declaration and permanent

injunction as against the petitioner and it stood decreed by the Trial Court vide its judgment and decree dated 15th December, 2009. The petitioner as

well as respondent Nos. 3, 4 and 5, who succeeded from Bhikari Lal, had preferred an Appeal, being Civil Appeal No. 3 of 2010, Bhikari Lal, since

deceased Vs. G.D. Mittal since deceased and others. During the pendency of the appeal, which was preferred as back as on 12th January, 2010, the

appellant, after eight years of institution of Appeal, had filed an application on 28.02.2018 invoking Order 41 Rule 25 of the C.P.C. read with under

Section 151 of the C.P.C. for framing of an additional issue to the following effects :-

“D;k fookfnr lEifRr [kljk u0 169 fe0 esa fLFkr gS tSlk fd okn i= o oknhx.k dh vkSj ls izLrqr cSukek isij u01 33 , 2 esa vafdr gSA ;fn gk rks

izHkko?â€​

The said application, which was filed under Order 41 Rule 25 of the Code of Civil Procedure, which after an objection raised by the decree holder

respondent Nos. 1 and 2 on 30.05.2018, has been rejected by the Appellate Court by the impugned order dated 30th May, 2018 under challenge in the

Writ Petition.

What is revealed from the records is that the Suit happens to be of 1983, which stood decreed on 15th December, 2009. The proceedings of the suit

was pending consideration before the Trial Court, it was after the exchange of the pleadings, issues were framed by invoking Order 14 of the C.P.C.

by the Trial Court. If at all, if there was any propriety on behalf of the defendants to modulate an issue or get it framed as desired by their application

belatedly under Order 41 Rule 25 of the C.P.C., they ought to have claimed before the Trial Court itself in the suit pending since 1983. Having not

done so, they proceeded to face trial on the basis of issues which were already framed and faced the decree dated 15th December, 2009, against

which, the appeal was filed in 2012.

Even otherwise, the proposed issue sought to be framed by the defendant, which has been argued that since it relates to identifiability of the subject of

suit, it was necessary for an effective adjudication of the suit. This plea cannot be accepted at this stage because there is no reason argued or pleaded

by the defendant as to why it did not pervade when principally the suit was tried. It is not only that, their inaction still persists and, even after preferring

of Appeal on 2010, they kept silent and faced the appeal, preferred by them for last about eight years till they filed present application invoking Order

41 Rule 25 of the C.P.C. only on 28.02.2018.

It cannot be ruled out that the purpose of filing of application under Order 41 Rule 25 was intending for a malicious prosecution so as to delay

proceedings because intention and object aimed to be derived was that as soon as the Appellate Court frames additional issues, the matter has to be

remitted back to Trial Court to return the findings on the newly framed issues. There was no necessity also of framing of proposed additional issues as

sought in the application dated 28th February, 2018, the reasons being, if the issues sought to be framed as modulated is read with the issues already

framed by the Trial Court, rather the Trial Court has already taken care of and has farmed the issues Nos. 2 & 3 to meet the purpose of the proposed

issue sought to be framed by invoking Order 41 Rule 25 of the C.P.C.

Hence, this Court finds no merit in the Writ Petition. The Writ Petition is, accordingly, dismissed.