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2001 DIGILAW 161 (KAR)

Anjuman Hami E Muslimi v. G. M. Mahendra

2001-02-16

K.SREEDHAR RAO

body2001
ORDER K. Sreedhar Rao, J.—The Revision filed against the order of the 13th Additional City Civil Judge, Bangalore on I.A. in Original Suit No. 352 of 1985. The second Defendant in the suit made an application for framing of additional issues and proposed in the application five additional issues required to be framed. The Plaintiff opposed the application. After hearing both the parties, the trial Court dismissed the application. Being aggrieved, the Revision is filed. 2. It is contended in the written statement of the second Defendant that the property in respect which the Plaintiff has filed suit for partition was dismissed in an earlier partition suit between the same parties at Mercara in O.S. No. 2 of 1983 and the said suit came to be decreed by compromise. 3. After hearing the Counsel for the revision Petitioner, he fairly conceded that five proposed issues may not be very germane and relevant for consideration and that only an issue could be framed regarding the legal effect of the omission of the suit property from the purview of the suit in O.S. No. 2 of 1983 on the file of the Civil Judge, (Senior Division) Mercara and further contended that according to the admitted case of the Plaintiff, the properties were made part of the partnership estate and later on the property was divided. The said claim of division has been assailed as illegal and in contravention of the legal provisions. It is prayed that appropriate issue may be framed to reflect the said legal controversy. In view of the submission made, the two issues referred to above reflecting the controversies in question may arise for trial Court's consideration. 4. The Counsel for the Respondent relied on the Ruling of this Court reported in ILR 2000 Kar 116 wherein it is held that the framing of issues or non-framing of issues is placed at the discretion of the trial Court and such exercise of discretion does not call for interference by this Court in revision. In view of the said decision, it is contended that the present revision would not be maintainable. Per contra, the counsel for the Petitioner relied on the ruling of this Court in G. Vasudeva Murthy Vs. Y. Narasimachar and Anr. In view of the said decision, it is contended that the present revision would not be maintainable. Per contra, the counsel for the Petitioner relied on the ruling of this Court in G. Vasudeva Murthy Vs. Y. Narasimachar and Anr. wherein it is held as follows: Orders of subordinate Courts which are either subject to appeal or subject to revision, should contain a sufficient statement of the contentions of the parties and the reasons in support of the conclusions of the Courts. Where the order on an application for deletion of an issue already framed and for framing another issue is defective in not setting out the contentions and reasons, it should be set aside. 5. Placing reliance on the said ruling, the Counsel for the Petitioner submitted that framing or non-framing of material issue is within the revisional jurisdiction of the High Court and for valid reasons, the High Court may exercise discretion and pass appropriate orders. 6. In this context, it is relevant to note that framing of issues is definitely within the jurisdiction of the Court and the Court has to carefully go through the pleadings assessing the factual and legal controversies raised by the parties and has to formulate the proper issues in that regard, the Court cannot insist the Counsel appearing for the parties to assist in framing of the issues. However, if issues are framed and if there is any defect in framing or non-framing of an issue, it would not be proper in the interests of justice to allow the parties without any remedy and drive them for a trial to have a result despite conscious of the defects in framing of the issues. The remedy in such cases should not necessarily by an appeal after the result of the suit. However as a preventive measure, it is always just and necessary that a party should be permitted to approach this Court in revision to correct such mistakes so as to enable the parties to properly understand the controversies and thereafter go for a trial on properly framed issues. 7. In the face of two conflicting views on the point by the two Single Judges, I felt the desirability of recommending the reference of the matter to Division Bench to set at rest the controversies on the question of law. The case was posted on 23.2.2001 for being spoken to. 7. In the face of two conflicting views on the point by the two Single Judges, I felt the desirability of recommending the reference of the matter to Division Bench to set at rest the controversies on the question of law. The case was posted on 23.2.2001 for being spoken to. However, Sri Prabhakar brought to my notice a Division Bench ruling of this Court in Channabasawwa Vs. Bhimappa Ramappa Hosmani, AIR 1975 Kar 15 . The power of the revision under Section 115 of the Code is discretionary. Therefore, the High Court, ordinarily, does not interfere with the orders of the trial Courts allowing or refusing amendments or addition of issues on applications by one or other of the parties. But that does not mean that the Court has no power to correct an error where the orders of the trial Court is perverse in the sense that where there is a conscious violation of a rule of law or procedure on the part of the subordinate Court. 8. In view of the law laid down by the Division Bench of this Court, I am of the opinion that the revision is maintainable. Accordingly, the case is remitted to the trial Court to frame proper issues on the matters in controversy which is left out and dispose of the case in accordance with law.