Smt. Usha Saxena vs Sundar Singh Bhadouriya and Others

Sujoy Paul, J.—This petition filed under Article 227 of the Constitution is directed against the order dated 15.03.2013 (Annexure P/1) passed in Civil Suit No. 9A/2013 whereby, the application preferred by the petitioner/plaintiff under Order 14 Rule 5 C.P.C. was rejected by the Court below. Shri S.S. Kushwah, learned counsel for the petitioner submits that in a suit for declaration and permanent injunction filed by the petitioner, issues were framed by the Court below. It is contended that issues No. 3 & 4 so framed by the Court were unnecessary and were required to be deleted. The Court below has erred in not deleting the same. By relying on the substantive provision of Order 14 Rule 5 C.P.C. Shri Kushwaha submits that language of the provision is very clear which shows that such application can be preferred at any time and court is equipped with the power to decide the question of deletion of unnecessary issue.

Per Contra, Shri S.K. Jain, learned counsel for the respondents submits that issues were framed by the Court below on 26.07.2010 and after more than two years the petitioner preferred Annexure P/5 on 15.03.2013. Thus, Court below has not erred in rejecting the said application.

I have heard learned counsel for the parties and perused the record.

A bare perusal of the impugned order Annexure P/1 shows that the Court below has not dealt with the rival stand of the parties on merits mentioned in the application preferred under Order 14 Rule 5 C.P.C. In other words, the Court below has rejected the said application solely on the ground of delay and did not deal with contention of the plaintiff on merits. Thus, the only question is whether such decision taken by the Court below is in accordance with law.

Order 14 Rule 5 C.P.C. makes it crystal clear that the Court may at any time before passing the decree amend the issues or framed the additional issue. The provision further makes it clear that Court may strike out any issue that appears to be it wrongly framed for introduced any time before passing the decree. Thus, I find force in the argument of Shri Kushwaha that mere delay in filing the applicant cannot be a ground to reject the application. No oblique motive of plaintiff in filing the application could be established.

Accordingly, I deem it proper to set aside the order dated 15.03.2013 and direct the Court below to decide the application under Order 14 Rule 5 C.P.C. Annexure P/5 on merits. The petition is allowed to the extent indicated above. It is made clear that this Court has not expressed any opinion on the merits of the case. Petition is allowed. No Costs.