JUDGMENT Mr. Rakesh Kumar Jain, J.: (Oral) - This petition is directed against the order dated 23.1.2014 by which application filed by the plaintiff under Order 14 Rule 5 of the Code of Civil Procedure, 1908 [for short ‘the CPC’] for framing of additional issue and for examining the handwriting expert in rebuttal was dismissed and the application filed by defendant No.1 for not allowing the plaintiff to examine the handwriting expert in rebuttal was allowed. 2. The brief facts of the case are that defendant No.1 entered into an agreement to sell the property in dispute to the plaintiff on 29.10.2004 for a sale consideration of Rs.4,55,000/- per acre in lieu of which the plaintiff paid in advance a sum of Rs.2 lacs to defendant No.1. The date for execution of sale deed was fixed as 15.6.2005 but before the said date, the plaintiff apprehending that defendant No.1 may not alienate the suit property before the target date, filed the suit on 22.4.2005. Defendant No.1 brought to the notice of the plaintiff that he had already entered into an agreement with Harbhagat Singh-defendant No.2 on 14.10.2004 and the present agreement is a forged document. After the target date was over, plaintiff filed the suit for specific performance of the agreement to sell after impleading both the prospective vendees i.e. Harbhagat Singh and Chamkaur Singh as defendants. In this suit, defendant No.1 has again taken a plea that there was no agreement with the plaintiff dated 29.10.2004 rather he had entered into agreement with defendants No.2 and 3 on 14.10.2004 and the agreement on the strength of which the suit has been filed by the plaintiff is a forged document. On the pleadings of the parties, as many as 12 issues were framed by the trial Court on 24.2.2006, which are reproduced as under: - “1. Whether the defendant No.1 entered into an agreement dated 29.10.2004 with the plaintiff to alienate the property in dispute @ Rs.4,55,000/- per acre, by receiving as an earnest amount from the plaintiff? OPP 2. Whether the plaintiff was ready and willing and is still ready and willing to perform his part to the said agreement dated 29.10.2004. OPP 3. Whether the plaintiff is entitled for specific performance of the agreement to sell dated 29.10.2004 as prayed for? OPP 4. Whether the plaintiff is entitled for possession of the property in dispute. OPP 5. Whether the plaintiff was ready and willing and is still ready and willing to perform his part to the said agreement dated 29.10.2004. OPP 3. Whether the plaintiff is entitled for specific performance of the agreement to sell dated 29.10.2004 as prayed for? OPP 4. Whether the plaintiff is entitled for possession of the property in dispute. OPP 5. Whether the plaintiff is entitled for permanent injunction, as prayed for? OPP 6. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 7. Whether the plaintiff is estopped by his own work and conduct from filing the present suit. OPD 8. Whether the suit of the plaintiff is bad for non-joinder of necessary parties and misjoinder of parties. 9. Whether the suit of the plaintiff is barred by rule? OPD 10. Whether the suit of the plaintiff is barred u/o 2 Rule 1 CPC? OPD 11. Whether the contesting defendants No.1 and 2 are entitled for compensatory costs U/s 352A of OPC? OPD 12. Relief. 3. Both the parties led their respective evidence. Thereafter, the plaintiff filed an application under Order 14 Rule 5 of the CPC for framing of an additional issue to the effect that “whether defendant No.1 executed the agreement to sell on 14.10.2004 qua the land measuring 19 kanals 17 Marlas out of the suit land, if favour of defendant No.2 Harbhagat Singh, if so, its effect? OPD. Since, defendant No.1 had already led the evidence by producing Harbhagat Singh as his witness, who has alleged that there was an agreement with him by defendant No.1 and wanted to wriggle out of the agreement with the plaintiff on the ground that it is a bogus document, the plaintiff tendered the report of the handwriting expert and his affidavit in examination-in-chief as PW6/A and at that stage, the defendants filed the application that the evidence sought to be produced by the plaintiff by way of examination of handwriting expert should not be allowed. 4. 4. Learned trial Court not only dismissed the application of the plaintiff filed under Order 14 Rule 5 of the CPC on the ground that the case was filed in the year 2005 and the plaintiff had taken five years to conclude his evidence and when the case was fixed for rebuttal evidence, the plaintiff, in order to examine the handwriting and finger print expert, has moved the application for the purpose of framing additional issue so that the burden may be put upon the defendants and he may be able to examine that witness in rebuttal. While allowing the application of defendant No.1 not to examine expert witness in rebuttal, the Court had observed that the fact of the agreement dated 14.10.2004 was very much within the knowledge of the plaintiff since long and he should have led the evidence in affirmative instead of asking for leading the evidence in rebuttal. It is observed that the entire exercise on the part of the plaintiff is to delay the suit. 5. Learned counsel for the petitioner has asked that as per Order 14 Rule 2 of the CPC, it is the duty of the Court to frame appropriate issues on the pleadings of the parties. Though there was a specific denial on the part of defendant No.1 but since he had entered into an agreement to sell with the plaintiff, therefore, specific issues were framed by the trial Court as to whether defendant No.1 entered into an agreement to sell with the plaintiff on 29.10.2004, and whether the plaintiff was ready and willing to perform his part of contract and whether the plaintiff is entitled to specific performance of the agreement to sell. However, the trial Court did not frame any issue as to whether there was any agreement between defendant No.1 and defendants 2 and 3, dated 14.10.2004 and its effect. Besides this, the defendants led their oral as well as documentary evidence as the agreement dated 14.10.2004 was tendered in evidence by DW2 despite the fact that there was no such issue framed by the trial Court. It is also submitted that until and unless there is a specific issue framed, the evidence led by the parties cannot be looked into. It is also submitted that until and unless there is a specific issue framed, the evidence led by the parties cannot be looked into. It is also submitted that sometimes, the Court observes that if the parties known the case of each other then framing of a specific issue is not required but in such a situation where the question of burden to proof is concerned and the plaintiff could not lead his evidence in affirmative because the burden to prove the issue is put upon the defendant then the only course left open is either to cross-examine the witness of the defendant or by way of leading evidence in rebuttal on that issue. But in the present case, it is submitted that no issue is framed about the validity of the agreement to sell dated 14.10.2004 in favour of defendants No.2 and 3. It is thus, submitted that de hors the delay, the ends of justice require that the additional issue be framed by invoking the provision of Order 14 Rule 5 of the CPC while putting the burden upon the defendants to prove agreement to sell dated 14.10.2004, otherwise the evidence which has been led by the defendants regarding existence of that agreement may not be considered. 6. Learned counsel for the petitioner has also submitted that the existence or non-existence of agreement to sell dated 14.10.2004 has a great significance in this case because in the criminal proceedings initiated at the instance of the plaintiff, who had filed FIR No.169 dated 4.7.2005 under Sections 420,467,468,471 and 120-B of the Indian Penal Code, 1860 at Police Station, Barnala, the accused therein have already been convicted by the CJM, Barnala holding that the agreement dated 14.10.2004 was an act of forgery. However, he has also not denied that an appeal against the said conviction and sentence has already been filed. 7. However, he has also not denied that an appeal against the said conviction and sentence has already been filed. 7. On the other hand, learned counsel for the respondents has argued that the plaintiff is not entitled to invoke the provisions of Order 14 Rule 5 of the CPC at the stage when both the parties have led their entire evidence as he was knowing about the factum of existence of agreement dated 14.10.2004 as alleged by defendant No.1 and should have asked for framing of additional issue at the time when issues were framed or immediately thereafter but not at the stage when both the parties have already led their entire evidence. It is also submitted that the application under Order 14 Rule 5 of the CPC has also been filed as a ploy to get an opportunity to examine handwriting expert in rebuttal. Insofar as the criminal case is concerned, it is submitted that the criminal case has no bearing on the Civil Court. 8. I have heard learned counsel for the parties and after examining the record, am of the considered opinion that this revision petition deserves to be allowed. The reason for arriving at this conclusion is that the plaintiff, who entered into agreement to sell dated 29.10.2004 was quite apprehensive that the suit property may not be alienated by defendant No.1 and his apprehension became true when it was found that defendant No.1 was avoiding to execute the sale deed on the targeted date later on for which suit for injunction was filed in which defendant No.1 set up the story of agreement to sell dated 14.10.2004 with defendants No.2 and 3, which was prior in time than the agreement to sell in favour of the plaintiff. Moreover, the trial Court when framed the issues, inadvertently skipped the pleadings of the defendants in respect of the agreement to sell dated 14.10.2004 because the entire case of the defendants is that agreement to sell in favour of plaintiff dated 29.10.2004 is a forged document and the affidavit of Harbhagat Singh is a genuine one. In these circumstances, it was incumbent upon the trial Court to have framed an issue for defendant No.1 to prove the genuineness of the agreement to sell dated 14.10.2014 in order to wriggle out of the agreement dated 29.10.2004. In these circumstances, it was incumbent upon the trial Court to have framed an issue for defendant No.1 to prove the genuineness of the agreement to sell dated 14.10.2014 in order to wriggle out of the agreement dated 29.10.2004. It is altogether different that the plaintiff did not file an application earlier when he was to lead evidence for which application at the stage of rebuttal and for framing additional issue was filed when the defendants led their entire evidence in the direction to prove agreement to sell dated 14.10.2004 in favour of Harbhagat Singh etc., who had already been convicted by the criminal Court on account of forgery of that document. 9. In these facts and circumstances, when the plaintiff had tendered in his evidence report of the handwriting expert in rebuttal and also filed his affidavit in examination-in-chief, the defendants had come up with a plea that the said witness should not be examined as there is no such issue before the Court on which rebuttal evidence could be led by the plaintiff. 10. Accordingly, the necessity arose for filing of an application for the purpose of framing additional issue. Learned trial Court has wrongly dismissed the application on the ground of delay only. Thus, in this background both the orders passed by the learned trial Court are erroneous and suffer from material irregularity and illegality in the exercise of its jurisdiction and are thus set aside. Hence, the revision petition is allowed 11. It is made clear that the aforesaid observations have been made while deciding the revision petition and the trial Court may not be influenced with the observations while deciding the main suit. ---------0.B.S.0------------ ——————————