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2018 DIGILAW 14 (UTT)

Pradeep Maheshwari v. Vishal Maheshwari

2018-01-05

SHARAD KUMAR SHARMA

body2018
JUDGMENT : Sharad Kumar Sharma, J. 1. The petitioner before this Court is a plaintiff of Suit No. 248 of 2011, Pradeep Maheshwari vs. Kashinath Maheshwari, wherein, in the suit, which he has preferred against his brothers, he has sought a relief for declaration of the gift deed dated 18th August, 2010, as to be void and he has simultaneously sought a decree of permanent injunction restraining them not to evict the plaintiff from the possession of the property as well as not to interfere in his ingress and egress from the passage, in question. 2. While the notices were issued in the suit, the defendants had put in appearance and had filed their written statement alongwith the counter claim and in the counter claim, as preferred by defendant No. 2, he had sought a decree to the effect that the plaintiff may be evicted from the property occupied by him, which he has defined that the plaintiff was occupying the property in the capacity of being a licensee. 3. After the exchange of the pleadings, the suit was dismissed and, consequently, an appeal was preferred by the plaintiff petitioner before the Appellate Court on 15th August, 2015, challenging the judgment and decree dated th May, 2015. While, the appeal was pending consideration, the plaintiff/appellant filed an application for making an amendment in the pleadings consequent to the replication filed by the defendants/respondents. The amendment application, thus, preferred by the plaintiff appellant was allowed, the said order allowing the amendment, it remained unchallenged by the defendants. 4. The contention of the learned counsel for the petitioner is that since by virtue of the amendment which stood allowed and remained uncontroverted or challenged by the defendants, as additional facts have been brought on record at the appellate stage, a necessity arose for him to get an additional issue framed with regard to the revocability or irrevocability of the license as contemplated under Section 60 of the Easement Act and, for the purposes, he has filed application on 7th September, 2017, praying for framing of an additional issue as to whether the license of the plaintiff/ appellant has become irrevocable in view of the provisions contained under Section 60 of the Easement Act. It is this application for framing of additional issue, as filed by the petitioner, has been rejected by the Appellate Court and has been impugned in the writ petition. It is this application for framing of additional issue, as filed by the petitioner, has been rejected by the Appellate Court and has been impugned in the writ petition. 5. At the initial stage to substantiate the contention of the learned counsel for the petitioner, he was directed to place on record the order dated 26th May, 2017, by virtue of which, the Appellate Court has allowed his amendment application. The same has been placed by him by way of supplementary affidavit. The learned Trial Court, when it was deciding the suit alongwith the counter claim, had framed the following issues:- ^^okn fcUnq la[;k&1 D;k oknxzLr lEifRr dk nkui= fnukafdr 18-08-2010 'kwU; o fu"izHkkoh gS\ Okkn fcUnq la[;k&2 D;k oknh iz'uxr lEifRr fof/kd :i ls dkfct pyk vkrk gS\ Okkn fcUnq la[;k&5 D;k izfroknh la[;k&2 dkmUVj Dyse esa of.kZr lEifRr ij dCtk oknh ls izkIr djus dk vf/kdkjh gS\** 6. Primarily, the issue No. 2 would be having a nexus with the additional issue which is being sought to be framed by the plaintiff appellant by invoking Order 41 Rule 25 of the CPC. 7. Though, apparently, looking to the contentions raised by the petitioner in the writ petition as well as that in the order dated 26th May, 2017, allowing the amendment application, it would be having an impact on defining the status of the petitioner as to whether he was a licensee or not as claimed by the defendant respondents. An additional issue was required to be determined because of the uncontroverted facts, which were brought on record, for the first time and was placed before the Appellate Court, by virtue of the amendment dated 26th May, 2017. Thus the reason, which has been assigned by the learned Trial Court while rejecting his application for framing of additional issue at the appellate stage, was that in an event of his application for framing of an additional issue is allowed, it would lead into complicating the controversy between the parties. This reasoning, at all, cannot be a reason for rejecting the application, because this Court is of the considered view that merely by virtue of a pleading raised by the rival parties, if a dispute between them is complicated, it does not mean that the Court will shy away from its responsibility to decide the same. This reasoning, at all, cannot be a reason for rejecting the application, because this Court is of the considered view that merely by virtue of a pleading raised by the rival parties, if a dispute between them is complicated, it does not mean that the Court will shy away from its responsibility to decide the same. Rather, this finding assigned by Court for denying to frame additional issue would amount to that in principle Court accepts the necessity of framing of additional issue. Thus the reason for rejection of the application is just unsustainable. On this ground, itself, the order dated 15th November, 2017, rejecting the petitioner’s application, paper No. 24-Ga, is quashed. 8. The writ petition is allowed. 9. But, simultaneously, it cannot be lost sight of the fact that the amendment which has been brought about by the plaintiff /appellant and under the garb of which, an additional issues is being sought to be framed pertaining to the impact of Section 60 of the Easement Act, though, it is desirable to be framed at an appellate stage and to be decided by the Appellate Court, itself, without relegating the matter to the Trial Court under Order 41 Rule 25, for the reason, looking to the rival contentions, the evidences on record and the issues which have already been decided by the Trial Court in relation to which the parties have already led their evidence, more or less, the proposed additional issue will have a close nexus in the decision making process entailing same evidences adduced by the party in relation to issue No. 2. 10. In that view of the matter, the learned Appellate Court will frame the additional issue as already mentioned above and will decide the additional issue itself without relegating the matter to the Trial Court. The decision on the additional issue would be based on the evidences already on record as produced by the parties.