Shri Chamaru and Others vs Smt. Subdha and Others

R.S. Pathak, C.J.—This is a revision petition under paragraph 35 of the Himachal Pradesh (Courts) Order, 1948, against the order of the learned Senior Subordinate Judge, Mandi, framing three issues in place of the issue originally framed in a substitution application.

Subdha filed a suit for prohibitory injunction against Chamaru and Jangi. The Defendants filed their written statements. On 10th March, 1969, Gauri Datt filed an application in the trial court stating that Subdha had died and had made a Will in favour of himself and his two brothers Devi Saran and Shukru and he prayed that they should be substituted as legal representatives in place of Subdha. The application was contested by Chamaru, who denied the Will and alleged that Subdha had obtained the property in dispute on the death of her husband and on her death the property devolved on the reversioners, Gulaba, Sohan Singh and Ram Ditta, sons of Subdha''s husband''s deceased brother. The trial court framed an issue on the substitution application, the issue being:

Who are the legal representatives of the deceased Plaintiff Subdha?

Evidence was led by Gauri Datt in support of the substitution application, and the Defendants examined Ram Ditta and Gulaba in opposition to it. Thereafter arguments were commenced by the parties. But on 22nd December, 1971, the trial court made an order stating that after hearing the arguments in part it had come to the conclusion that the issue had not been properly framed and in supersession of that issue the following issues were framed:

(1) Whether Smt. Subdha had made a valid will in favour of Gauri Datt, Devi Saran and Shukroo in respect of the suit land and as such they arc-entitled to be brought on record as Plaintiffs in place of Smt. Subdha deceased? O.P. Applicants.

(2) In case issue No. 1 is proved, whether Smt. Subdha had no right to make any Will in respect of the property in suit? O.P. Respondents.

(3) Relief.

This order is challenged by the present revision petition.

Learned Counsel for the Petitioner states at the outset that he presses this revision petition under paragraph 35(1)(a) only of the Himachal Pradesh (Courts) Order and does not invoke the jurisdiction of this Court under paragraph 35(1)(b) of that Order. It must, therefore, be considered whether the present case falls within paragraph 35(1)(a). Paragraph 35(1)(a) of the Order, as amended, provides:

The High Court may call for the record of any case which has been decided by a Civil Court subordinate to it and in which no appeal lies to it, and

(a) if the Civil Court by which the case was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction with material irregularity,...the High Court may make such order in the case as it thinks fit.

It is clear that the impugned order does not constitute a "case decided". Nothing has been decided between the parties. All that the trial court has done is to frame some ''issues on the substitution application. u/s 115, Code of Civil Procedure, a case may be said to be decided if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy. Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, The language and intent of paragraph 35(1)(a) of The Himachal Pradesh (Courts) Order, so far as this is concerned, is comparable to that of Section 115, Code of Civil Procedure. On this ground alone, it is clear that the revision petition is not maintainable.

Even if the revision petition was maintainable, the question arises whether the trial court committed a jurisdictional error so as to bring the case within paragraph 35(1)(a). Tile evidence led by the parties on the issue originally framed by the trial court has been placed before me, and it is apparent that the parties did not fully appreciate the nature of the real dispute which arose between them on the substitution application and (therefore of the kind of evidence called for. The Will was put forward by those who had come forward as legal representatives, and was denied by the Defendants, it was necessary to put the validity of the Will into issue and to determine whether Subdha had any right to dispose of the property'' by Will. The issues were material issues, vitally a proper decision on the substitution application. In framing those issues the trial Court acted reasonably and in the interests of justice.

It is pointed out that the parties had led evidence already and, therefore, the trial court had no power to frame fresh issues. It seems to me clear that the mere circumstance that evidence has been led does not divest the trial Court of the jurisdiction to frame fresh issues. If, as in the present case, the trial court found that the omission on its part to frame proper issues was prejudicing the proper trial of the substitution application it was only right and proper that it should frame those issues. The deficiency appeared to the trial court in the course of arguments on the evidence already led, and apparently it appeared that the parties had not fully appreciated what was expected of them by way of proof concerning the respective positions assumed by them on the substitution application. If the court finds that an issue framed. I by it is vague or inadequate and thereby one or both the parties are being prejudiced, the Court is bound to frame a proper issue in supersession of the original issue. The Court has always power to frame issues at any time before a decree is passed. That is clear from Order 14 Rule 5 of the Code of Civil Procedure. It is inhibited from doing so only if the exercise of such power at a later stage is likely to prejudice a fair trial of the case. For the Petitioners it is contended that the impugned order results in bringing about that prejudice. Reference has been made to Kunju Kesavan Vs. M.M. Philip I.C.S. and Others, , Smt. Hirabai Chauhan Vs. Mst. Bhagirathibai, and Bhaskar Manilal and Others Vs. Narandas Chunilal Soni and Others, In those cases the facts show that all the evidence which could reasonably be led had been adduced by the parties and it was apparent that the parties were under no mistake as to the true issue which arose between them. In the circumstances, it was held that the framing of fresh issues was not called for.

After the revision petition was admitted by this Court, an additional ground has been added with the permission of the Court. The ground is that the trial Judge should have rejected the substitution application as "incompetent, unlawful and not maintainable at all." The ground is vague and does not specify the basis on which the substitution application is assailed as incompetent, unlawful and not maintainable. For the Petitioner, it is pointed out before me that the substitution application was signed by Gauri Datt as Mukhtiar-c-Am of Subdha, and as she was already dead he was not competent to maintain the application. That is a question which properly falls for consideration before the trial court, and it will be for the trial court to dispose of that ground in case it is properly raised before it.

In the circumstances, the revision petition fails and is dismissed with costs.