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2007 DIGILAW 31 (JK)

Ajay Kumar v. Darshana Devi

2007-03-22

J.P.SINGH

body2007
1. Plaintiff-Ajay Kumar invokes this courts Civil Revisional Jurisdiction to set-aside Munsiff R. S. Puras order dated 28-04-2003 framing three additional issues when the plaintiff had completed his evidence and the defendant was in process of leading his evidence. 2. Mr. P. N. Bhat, appearing for the revisionist questions the impugned order saying that the Munsiff had erred in framing fresh issues which neither arose out of the pleadings of the parties nor were these suggested by the parties to the suit. The issues, on the other hand, had been framed on what had emerged from the statement of Ram Lal, -- the guardian of the defendant, when, while appearing as a witness in the case he was under cross-examination by the Court. 3. I have considered the submission of Mr. Bhat and gone through the records of the trial court. 4. Perusal of the trial court records unfolds a pathetic scenario. A civil suit seeking declaration that judgment and decree dated 28-08-1987 of Munsiff R. S. Pura had been obtained by fraud and was null and void, instituted on 20th of March 1990, continues to remain undecided on the file of the trial court for all these about seventeen (17) years. The interim orders passed in the case too reflect that requisite efforts had not been made to ensure speedy resolution of the dispute between the parties. 5. A Judicial Officer and a Judge, when seized of a case, is required to keep his mind cool and composed to ensure that he does not get influenced by what happens at the spur of moment. He has to keep in mind always that the duty he was discharging was a solemn duty of dispensing justice, of course, in accordance with law and which duty would not permit him to be swayed by what happens on one or the other dates of hearing during the trial of a case because such a course may derail him from adopting the procedure which, in terms of the law, he was required to follow before arriving at the final decision regarding the rights and liabilities of the parties to the litigation and eventually leading to delayed resolution of the disputes raised before him. 6. Delay in disposal of Civil Cases affects seriously the Civil Justice Dispensation System. 6. Delay in disposal of Civil Cases affects seriously the Civil Justice Dispensation System. Judicial Officers dealing with Civil cases are thus required to have regard to the orders passed in the case from time to time before passing orders on the date when the case comes up before them for taking further proceedings. They should further ensure that the cases were not adjourned unnecessarily and on mere asking of one or the other parties appearing in the case. Such careful approach of the officers would help advance the cause of justice besides avoiding recurrence of mistakes like the one which has been noticed in this case which has delayed further the disposal of this probably the oldest case on the file of Munsiff R. S. Pura. The records of the trial court reveal, that on 26th of September 1996, the trial court had framed four preliminary issues including the one, as to the maintainability of the suit. These issues, except issue No. 4, as to whether the suit was within time, were decided in favour of the plaintiff holding the suit maintainable. Issue No.4 was ordered to be taken up with other issues, which were to be framed on the adjourned hearing. The written statement was thereafter amended and out of the pleadings of the parties, the trial court framed four issues which read thus:- "1. Whether the judgment and decree passed by the Court of Munsiff, R. S. Pura dated 28-8-1987 in favour of defendant Ajay Kumar has been obtained by fraud and mis-representation of facts and is null and void (OPP) 2. Whether the present suit is filed within limitation period.(OPP) 3. Whether the suit is barred by order 23 rule 3-A CPC.(OPD) 4. Relief OPD." Plaintiffs evidence was concluded in March 2003 where- after the defendant was called upon to lead evidence. 7. It was during the examination of Ram Lal, the guardian of the defendant as his witness that the learned Munsiff, passed the impugned order making observations that the impugned decree and judgment in the suit "can not exist under law", framed three issues which read thus:- "A. Whether the defendant herein had not availed of equal efficacious remedy before the Sub Registrar, R. S. Pura, for getting the adoption Deed executed in his favour by Mst. Sita Devi registered and authenticated, if so, what are its effects? Sita Devi registered and authenticated, if so, what are its effects? OPD B. Whether, the defendant was entitled to approach the Sub Registrar R. S. Pura, for getting the execution of the adoption deed executed in his favour registered in view of section 40 & 41 of Registration Act, for getting its benefit before the Revenue court for solving the grievance as he has projected in his statement examined on 28-04-2003? OPD C. If the first issue is determined in favour of the plaintiff and against the defendant as to whether the impugned decree and the judgment dt: 28-8-1987 passed by the court of Ld. Munsiff R. S. Pura, is nullity in the eyes of Law as the defendant had not availed of the equal efficacious remedy in the earlier suit filed by him? 8. Order XIV of the Code of Civil Procedure governs the framing of issues in a civil suit. Issues arise when a material proposition of fact and law was affirmed by one party and denied by the other. Material propositions of law or fact are required to be alleged by a plaintiff or a defendant in order to show his right to sue or to constitute his defence, as the case may be. At the first hearing of the suit, the court, after reading the plaint and the written statement and after examination of the parties under Order X Rule 2 of the Code of Civil Procedure is required to ascertain upon what material propositions of fact and law the parties were at variance. It is only after finding such variance that the Civil Court proceeds to frame and record issues on which the right decision of the case would depend. 9. The Code of Civil Procedure does not contemplate framing of issues on the basis of material appearing in the cross-examination of a witness(s). 10. Viewed thus in the light of what is contained in Order XIV of the Code of Civil Procedure, the order of learned Munsiff cannot be sustained on any count whatsoever. Had the learned Munsiff taken a little care to go through the earlier orders passed in the case holding the suit to be maintainable, there would not have been any necessity of framing fresh three issues. Had the learned Munsiff taken a little care to go through the earlier orders passed in the case holding the suit to be maintainable, there would not have been any necessity of framing fresh three issues. After having framed issues as to whether the decree dated 28-08-1987 questioned in the suit had been obtained by fraud and misrepresentation of facts and was null and void, there was no occasion for the trial court to observe that the decree was unsustainable unless the parties had been heard in the matter and proper decision rendered thereon in accordance with law on the already framed issues. Learned Munsiff, in my opinion, has thus acted illegally in framing issues, which did not arise out of the pleadings of the parties. Order passed by learned Munsiff on 28-04-2003 cannot thus be sustained. 11. When confronted with the plain reading of provisions of Order XIV of the Code of Civil Procedure and the law on the subject, learned counsel for respondents had nothing much to say to justify the order of learned Munsiff. 12. For all what has been said above, this revision petition succeeds and is accordingly allowed setting aside order dated 28-04-2003 of learned Munsiff R. S. Pura. Looking to the age of the case in the trial court learned Munsiff will be well advised to take up the suit for consideration every week so as to ensure resolution of the dispute between the parties expeditiously.