Sri Abhinandan vs Smt. Poonam

Ravi Malimath, J.—The petitioner filed a suit for specific performance. Issues were framed. Thereafter the plaintiff filed an application under Order 14 Rule 5 of CPC, seeking to caste additional issues. By the impugned order, one additional issue was framed. Aggrieved by the non framing of additional issues as prayed, the plaintiff has filed the present petition. Smt. Hemalekha K.S., learned counsel for the petitioner contends that the impugned order is bad in law and liable to be set aside.

What is sought for is, the additional issues to be framed based on the written statement of the defendant, viz., as follows:

i) Whether the defendant proves that the plaintiff approached and demanded for refund of advance sale consideration amount of Rs. 50,00,000/- paid by him to her as per the agreement of sale dated 16.1.2009?

ii) Whether the defendant proves that she has refunded the advance sale consideration amount of Rs. 50,00,000/- to the plaintiff on 6.3.2009 and obtained cash voucher in the presence of two witnesses?

iii) Whether the defendant proves that in view of the refund of advance sale consideration amount of Rs. 50,00,000/- the agreement of sale dated 16.1.2009 stands cancelled?

iv) Whether the plaintiff entitled to get damages to the tune of Rs. 30,00,000/- from the defendant for having failed to perform her contract and committed breach of the sale contract?

The trial Court, while considering the plea, was of the view that since according to the defendant she has paid the entire earnest money to the plaintiff, issue No. 3 and issue No. 4 includes the defence raised by the defendant in his written statement. Therefore there was no need to frame additional issue Nos. 1 to 3. Under these circumstances when the plea of the petitioner seeking for framing of additional issues is answered by the trial Court by holding that the issues already framed, cover the issues sought to be framed by the plaintiff, I do not find any error committed by the trial Court that calls for any interference.

Moreover it is a plea of the defendant. It is this issue that the plaintiff seeks to frame additional issues in the suit. When such an issue is already covered by the issues already framed by the trial Court earlier, the question of re-framing the additional issues would only amount to duplication of the issues. Consequently, I do not find any legal right of the petitioner infringed by the impugned order. Consequently, the petition being devoid of merit is dismissed.