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2015 DIGILAW 598 (HP)

Umesh Sharma v. Ranjana Sood

2015-05-27

P.S.RANA

body2015
Order P.S. Rana, J. Present application is filed under Order 14 Rule 5 read with Section 151 CPC for framing of additional issue. Brief facts of the case as pleaded are that plaintiff Umesh Sharma filed civil suit No. 58 of 2006 against Smt. Ranjana Sood for specific performance of contract dated 23.9.2006 and also sought consequential relief of possession of suit property comprised in khata/khatauni No.36 min/164 khasra No.2488/15/2 min (old) and khasra No.3 (new) measuring 2472-38 Sq.metres situated in mauza Vikasnagar District Shimla HP and thereafter Ajay Sood son of Jagdish Lal Sood was also impleaded as co-defendant No.2 in civil suit No. 58 of 2006. Co-defendant No.2 Sh Ajay Sood also filed separate civil suit No.76 of 2007 against co-defendants Smt. Ranjana Sood and Lalit Kumar Sood and proforma defendant Umesh Sharma for specific performance of agreement of sale dated 21.9.2006 relating to immovable property comprised in khata No. 36/35 min khatauni No.164, 165, 166 and 167 khasra Nos. 3, 5, 6 and 20 (old khasra No.2488/155/2) measuring 2988.40 Sq metres mauza Vikasnagar Tehsil and District Shimla HP. It is proved on record that both suits i.e. civil suit No.58 of 2006 and civil suit No. 76 of 2007 were clubbed together by Hon’ble High Court of HP vide order dated 4.11.2011 while disposing of OMP No.216 of 2011 filed in civil suit No. 76 of 2007. During the pendency of civil suit No.58 of 2006 present OMP No.437 of 2014 filed by applicant Umesh Sharma under order 14 Rule 5 read with Section 151 CPC for framing of additional issue. It is pleaded that civil suit No. 58 of 2006 filed for specific performance of agreement of sale of immovable property dated 23.9.2006 and consequential relief of possession. It is further pleaded that during the course of trial co-defendant No.2 was added as party and co-defendant No.2 Ajay Sood also filed separate civil suit No.76 of 2007 for specific performance of agreement of sale dated 21.9.2006 in respect of suit property against applicant Umesh Sharma. It is further pleaded that at the time of framing of issue material proposed issue i.e. issue No.9A was not framed by the Court which is quoted as under: “Whether agreement of sale dated 21.9.2006 is sham, false, collusive and fictitious document prepared by defendant No.1 (Smt. Ranjana Sood) through her GPA with defendant No.2 (Sh. It is further pleaded that at the time of framing of issue material proposed issue i.e. issue No.9A was not framed by the Court which is quoted as under: “Whether agreement of sale dated 21.9.2006 is sham, false, collusive and fictitious document prepared by defendant No.1 (Smt. Ranjana Sood) through her GPA with defendant No.2 (Sh. Ajay Sood) to defeat the rights of plaintiff (Sh. Umesh Sharma)?” …OPP. It is further pleaded that aforesaid issue is essential in order to determine the real controversy inter se the parties. It is further pleaded that there will be no prejudice to non-applicants/defendants if additional issue is framed. Prayer for acceptance of application filed under Section 14 Rule 5 read with Section 151 CPC sought. 2. Per contra reply filed on behalf of non-applicants/defendants pleaded therein that present application has been filed by applicant Umesh Sharma with malafide intention just to delay the trial of the case. It is further pleaded that civil suit No. 58 of 2006 titled Umesh Sharma Vs. Ranjana Sood and others and civil suit No. 76 of 2007 titled Ajay Sood Vs. Ranjana Sood and others were consolidated by the Court. It is further pleaded that proposed issue already stood covered in the issues already framed by the Court. It is further pleaded that parties have led entire evidence and at this stage no additional issue is required to be framed by the Court. It is further pleaded that applicant intents to reopen the entire case in affirmative and prayer for dismissal of application sought. 3. Court heard learned Advocate appearing on behalf of the applicant/plaintiff and learned Advocate appearing on behalf of non-applicants/defendants and also perused entire records carefully. 4. Following points arise for determination in the present application. 1. Whether application filed under Order 14 Rule 5 read with Section 151 CPC is liable to be accepted in view of the fact that no relief is claimed against applicant Umesh Sharma on the basis of agreement to sell dated 21.9.2006 in civil suit No. 76 of 2007 and in view of the fact that applicant Umesh Sharma has been impleaded as proforma defendant in civil suit No.76 of 2007 titled Ajay Sood Vs. Ranjana Sood and others and in view of fact that no relief is claimed in relief clause on basis of agreement dated 21.9.2006 in civil suit No. 58 of 2006 and in view of fact that no counter claim is filed in civil suit No. 58 of 2006 on basis of agreement dated 21.9.2006 under Order VIII Rule 6-A CPC?. 2. Final Order. Finding upon Point No.1. 5. In civil suit No. 58 of 2006 applicant Umesh Sharma is plaintiff and Smt. Ranjana Sood and Sh Ajay Sood are co-defendants in civil suit No. 58 of 2006. In civil suit No. 76 of 2007 Sh Ajay Sood is the plaintiff and Ranjana Sood and Lalit Kumar Sood are co-defendants and Umesh Sharma is the proforma defendant. Applicant Umesh Sharma did not file any application in civil suit No.76 of 2007 to delete his name as proforma defendant. As per law interest of plaintiff and interest of proforma defendant always remains similar. It is well settled law that trial court is competent to frame issue for just decision of the case and it is also well settled law that courts are duty bound to frame issue as per pleadings of the parties. It is well settled law that no issue should be framed by the Court if (1) Subsequent points are inconsistent with original plea (2) Subsequent plea is wholly different from original plea (3) If subsequent plea would change the nature of suit (4) If subsequent plea would reopen whole case then discretion to frame issue should not be exercised by the Court at later stage. 6. It is not expedient in the ends of justice to allow present application on following reasons. (1) That applicant Umesh Sharma is proforma defendant in civil suit No. 76 of 2007 as per memo of parties as of today placed on record. (2) That plaintiff Ajay Sood did not seek any relief against applicant Umesh Sharma in civil suit No. 76 of 2007 relating to agreement dated 21.9.2006 in relief clause. (3) That applicant Umesh Sharma is not privity to agreement dated 21.9.2006. (4) That applicant Umesh Sharma is not signatory to agreement dated 21.9.2006. (5) That applicant Umesh Sharma did not file any application to delete his name as proforma defendant in civil suit No. 76 of 2007 till date wherein agreement dated 21.9.2006 is in dispute. (3) That applicant Umesh Sharma is not privity to agreement dated 21.9.2006. (4) That applicant Umesh Sharma is not signatory to agreement dated 21.9.2006. (5) That applicant Umesh Sharma did not file any application to delete his name as proforma defendant in civil suit No. 76 of 2007 till date wherein agreement dated 21.9.2006 is in dispute. (6) That applicant did not seek any relief in relief clause in civil suit No. 58 of 2006 on the basis of agreement dated 21.9.2006. (7) That applicant filed written statement in civil suit No. 76 of 2007 in the capacity of proforma defendant No.3. (8) That legally proforma defendant is not permitted to file written statement contrary to plaintiff interest till proforma defendant sought permission from Court to delete his name as proforma defendant in civil suit. (9) No counter claim is filed in civil suit No.58 of 2006 on basis of agreement dated 21.9.2006 as required under Order VIII Rule 6-A of the Code of Civil Procedure 1908 by Ajay Sood. 7. It is not expedient in the ends of justice to frame proposed additional issue as mentioned in OMP No. 437 of 2014 at the instance of applicant who is proforma defendant in civil suit No. 76 of 2007 wherein agreement dated 21.9.2006 is directly and substantially in issue. In view of above stated facts point No.1 is answered against applicant. Point No.2(Final Order): 8. In view of my findings upon point No.1 above OMP No. 437 of 2014 filed under Order 14 Rule 5 read with Section 151 CPC for framing additional issue is dismissed. No order as to costs. Observation made hereinabove is strictly for the purpose of deciding the present application and it shall not effect merits of the civil suit in any manner. OMP No. 437 of 2014 is disposed of.