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2002 DIGILAW 358 (PNJ)

Jasso v. Harbans Singh

2002-04-03

M.M.KUMAR

body2002
Judgment M. M. Kumar, J. 1. Notice of the revision petition is issued and the same has been accepted by Shri S. S. Chandi, learned counsel for the caveator-defendant-respondents. On the request of learned counsel for the parties, the revision petition has been taken up for arguments. 2. This revision petition filed under Sec.115 of the Code of Civil Procedure, 1908 (for brevity, the Code) is directed against the order dated 1/2/2002 passed by the Additional civil Judge (Junior Division), Nakodar dismissing the application filed by the plaintiff-petitioner under Order XIV, Rule 5 read with Sec.151 of the Code in which prayer was made for deleting the issue No.1-B. 3. Brief facts of the case leading to the filing of the present revision petition are that the plaintiff-petitioner alongwith another filed a suit claiming that they are owner in possession of the suit land and the mutation sanctioned in favour of defendant-respondents is void as no sale deed in respect of the suit land has been affected by the plaintiff-petitioner. The stand taken by the defendant-respondents in their written statement is they had purchased the land in dispute from the plaintiff-petitioner through a sale deed executed by one Harbans singh on their behalf who was his power of attorney. The power of attorney is dated 13.11.1992 on the basis of which sale deed has been executed in 1993. However, in the amended written statement, it was pleaded that there was another power of attorney in favour of Harbans Singh executed on 20-8-1971 under which some other land was sold on 11-6-1976 in favour of some other party. The land sold vide sale deed dated 11-6-1976 has not been the subject matter of the dispute. Therefore, an application was moved under order XIV, Rule 5 read with section 151 of the Code asserting that the issue No.1-B framed by the Court was absolutely unnecessary and superfluous. A request was made for deleting that issue on the ground that it would be an unnecessary issue and would lead to confusion. The issue No.1-B reads as under: "issue No.1-B "whether the plaintiff appointed harbans Singh their attorney vide power of attorney dated 20-8-71, and executed sale deed on the basis of same, if so, its effect? OPD" 4. A request was made for deleting that issue on the ground that it would be an unnecessary issue and would lead to confusion. The issue No.1-B reads as under: "issue No.1-B "whether the plaintiff appointed harbans Singh their attorney vide power of attorney dated 20-8-71, and executed sale deed on the basis of same, if so, its effect? OPD" 4. The Civil Judge dismissed the application filed under Order XIV, Rule 5 read with Sec.151 of the Code by recording the following order: "i have considered the contentions raised by the counsel for the parties and have gone through the file very carefully. The defendant has set up his case on the basis of Harbans Singh attorney on behalf of the plaintiffs executed sale deed in favour of the defendants on behalf of the plaintiffs and this fact has been denied by the plaintiff in replicati on. The question is to be solved by the court is that whether the Harbans Singh has executed sale deed in favour of the defendants as general attorney on behalf of the plaintiffs and in this regard for just and proper decision of the suit the issue No.1 recasted on 1.2.2002 and issue No.1-B was framed accordingly which is material one. More so, the issue was framed in the presence of counsel for the plaintiff/applicant and at that time, counsel for the plaintiff/ applicant has given his consent in framing of issues. Hence, the application of the plaintiff/applicant for deleting the issue No.1-B is hereby dismissed being devoid of any merits. " 5. I have heard Shri V. G. Dogra, learned counel for the plaintiff-petitioner and Shri S. S. Chandi, learned counsel for the defendant-respondents and have perused the record with their assistance. 6. Shri Dogra has argued that a reference to the power of attorney dated 13.11.1992 has been made in the sale deed executed in 1993 which is subject matter of dispute in the suit. The power of attorney dated 20-8-1971 was given to Harbans singh for the purposes of executing sale deed dated 11-6-1976. He has also referred to the written statement filed by the defendant-respondents wherein this very stand has been taken. Therefore, according to the learned counsel, the framing of issue No.1-B is absolutely superfluous and would unnecessarily cause confusion and delay in the decision of the suit. 7. He has also referred to the written statement filed by the defendant-respondents wherein this very stand has been taken. Therefore, according to the learned counsel, the framing of issue No.1-B is absolutely superfluous and would unnecessarily cause confusion and delay in the decision of the suit. 7. Shri S. S. Chandi, learned counsel for the defendant-respondents, on the other hand, has submitted that the issues were framed in the presence of plaintiff-petitioner and no objection was raised by her at that time. He has pointed out that the issue No.1-B is a proper issue. He has further submitted that even if power of attorney dated 20-8-1971 has no bearing on sale deed executed in 1993 no harm is likely to be caused if this issue is also adjudicated upon. 8. I have thoughtfully considered the submissions made by the learned counsel for the parties and of the view that arguments advanced by the learned counsel for the plaintiff - petitioner are well-founded and the revision deserves to be allowed because under order XIV, Rule 5 read with Order XIV, Rule 1 of the Code, the Court is competent to strike out an issue that appears to it to be wrongly framed and it is the duty of the Court to ensure that the proper issues are framed. In the present case, issue No.1-B does not even arise from the pleadings of the parties as the subject matter of the dispute is the sale deed executed in 1993 which has made specific reference to the power of attorney dated 13-11-1992. The earlier power of attorney dated 20-8-1971 has no bearing on the sale deed executed in 1993. 9. The argument of Shri Chandi, learned counsel for the defendant-respondent that the issues were framed in the presence of the plaintiff-petitioner cannot be accepted because it is the duty of the Court to frame proper issues and no estoppel would arise even if the issues have been framed in the presence of the parties. Therefore, I have no hesitation in rejecting this argument raised by the defendant-respondents. For the reasons recorded above, this revision petition is allowed. The impugned order dated 1/2/2002 is set aside. A direction is issued to the Additional Civil Judge (Senior division), Nakodar to delete issue No.1-B. Revision allowed.