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2000 DIGILAW 748 (KAR)

Sharitha P. Bhandary v. Vanaja Heggadthi

2000-11-16

H.N.TILHARI

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ORDER Hari Nath Tilhari, J.—This revision under Section 115 of the Code of Civil Procedure arises from the judgment and order dated 15.2.1999 passed by Additional Civil Judge, Senior Division, Udupi on an application filed by Defendants under Order 14, Rule 5 read with Section 151 of the Code of Civil Procedure in original suit No. 190 of 1989. Defendant Nos. 22 to 26 has prayed for framing of additional issue and the trial Court after detailed consideration of the matter allowed the application and framed three additional issues as contained in its order dated 15.2.1999. The Plaintiff having felt aggrieved from the order of the trial Court framing additional issues has come up in revision under Section 115 of the Code of Civil Procedure. 2. I have heard the learned Counsels for the parties. I have heard Sri Uma Shankar for Sri Mohandas N. Hegde, learned Counsel for the Petitioner. 3. The Respondents' Counsel raised the preliminary objection to the maintainability of the revision and contended that the order impugned namely order allowing application for framing of additional issues and the framing of additional issues by the trial Court does not amount to be a case decided within the framework of Section 115 and so the revision is not maintainable. On behalf of revision Petitioner, it was submitted that the order may be said to be a case decided as Defendants' applications has been allowed for framing of issues and the trial Court has acted illegally while framing the issues. The learned Counsel for the revision Petitioner has been asked to explain what special rights of the Defendants has been decided by allowing the application, but he failed to give any reply. 4. In my opinion, in view of the law laid down in the case off Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) Pvt. Ltd. and Others, AIR 1970 SC 406 the order impugned cannot be held to amount to a case decided. As regards expression case, and what is meant by a case decided, their lordships after having considered and referred the earlier decision in the case of Major S.S. Khanna Vs. Brig. F.J. Dillon, AIR 1964 SC 497 observed as under: a case may be said to be decided, if Court adjudicates for the purpose of the suit some right or obligation of the parties in controversy. Brig. F.J. Dillon, AIR 1964 SC 497 observed as under: a case may be said to be decided, if Court adjudicates for the purpose of the suit some right or obligation of the parties in controversy. Every order in the suit cannot be regarded as the case decided within the meaning of Section 115 of the Code of Civil Procedure. Here, by the present order only the additional issues which arise from the pleadings requiring the trial have been framed. No decision has been recorded one way or the other in favour of the parties on those issues. When no right of the party is decided, this order framing additional issue can only be said to an order made in the course of the proceeding of the cases and it cannot amount to be a case decided. 5. When I so observe, I find support for my view from the decision of Allahabad High Court in the case of Modi Spinning and Weaving Mills Co. and Another Vs. Ladha Ram and Co., AIR 1978 All 260 as well as from another decision of Allahabad High Court in the case of M/s. Kisan Udyog and another Vs. United Bank of India and others, AIR 1990 All 8 . In both these cases, it has been held that an order either of refusal to frame or an order framing additional issues does not amount to be a case decided, as no right or obligation of the party is determined. 6. The learned Counsel for the revision Petitioner contended that order may not be amount to a case decided but the Court below has erred in framing the issue. He submitted that in the present suit for declaration filed by the present Plaintiff, the opposite party the Defendant had claimed himself to be the tenant of the land in dispute, though, the learned Counsel further contends, no application for acquisition of tenancy rights had been made before the land Tribunal prior to 30.6.1979. I do not express any opinion on this. The correctness of a parties claim or case and when asserted by pleadings, has to be determined. I do not express any opinion on this. The correctness of a parties claim or case and when asserted by pleadings, has to be determined. When in defence claim of the rights of tenancy has been made and issue had to be framed, that issue has to be tried according to law either by the Civil Court itself or by the Court competent, may be Revenue Court or Revenue Tribunal, that is a different matter. But even according to the contention of the Plaintiff Respondents Counsel, the plea of tenancy right has been raised. Though, according to him no application for grant of tenancy right has been made, the claim in the defence is there and then the trial Court had to frame the issue and it did rightly frame the issue. Now the burden will be on the Defendants to prove the tenancy rights. As such the above contention of the Counsel for the revision Petitioner has got no merits. That so far as the question as to whether the order impugned amounts to be a case decided, as I held earlier by framing of additional issues, no rights of the parties has been decided. Rights when will be decided rightly or wrongly after trial of issue and case, there will be appellate forum to determine the correctness of the finding. 7. A Division Bench of this Court has also expressed the view in the case of Smt. Channabasawwa and Another vs. Bhimappa Ramappa Hosmani and Others, AIR 1975 Kar 15 that exercise of power and jurisdiction under Section 115 of the Code of Civil Procedure being discretionary, therefore, the High Court will ordinarily not interfere with the order of the trial Court, allowing or refusing amendment of issues or framing of additional issues on applications by one party or by other parties. 8. 8. The proviso of Section 115(i) of the Code of Civil Procedure provides and directs as under: Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where- a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. 9. The learned Counsel for the revision Petitioner Sri Uma Shankar failed to satisfy the Court about either of the exceptions. Really framing of additional issues will enlighten the parties to the case as upon whom burden is there to prove a fact or issue and it will only serve the cause of justice and it has no tendency to cause any irreparable loss or injury to the present revision Petitioner. 10. The revision petition as such is to be and is hereby dismissed. No order as to costs. It appears that the suit in which the order impugned has been passed is of 1989 and more than eleven years have passed. In the circumstances, it is expected that the trial Court with the co-operation of the parties and the Counsels will try to expeditiously decide the suit. 11. Subject to the above observations, the revision is dismissed.