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2018 DIGILAW 692 (RAJ)

Gunwant Singh Jhala v. Yuvraj Singh Jhala

2018-03-06

ARUN BHANSALI

body2018
JUDGMENT Arun Bhansali, J. - This writ petition is directed against the order dated 16.11.2017 passed by the Additional District Judge No.5, Udaipur, whereby, the application filed by the petitioner under Order XIV Rule 5 CPC has been rejected. 2. The respondent No.l - plaintiff filed a suit for partition, inter alia, claiming the suit properties as joint family properties. The petitioner filed his written statement denying the averments made therein, and claimed the properties as his individual properties. Certain additional pleas were also raised regarding the nature of property in the hands of their father and a counter-claim was also filed seeking certain reliefs against the plaintiff. 3. Based on the pleadings of the parties, the trial court by its order dated 30.4.2016, framed twelve issues. 4. After passage of over 1/ year, on 30.10.2017 the present application was filed by the petitioner under Order XIV Rule 5 CPC, inter alia, claiming that while framing the issues on 30.4.2016, issues based on the additional pleas raised by the petitioner and the counter-claim filed, have not been framed, in absence whereof, the petitioner would suffer immensely and would not be able to get justice and, therefore, the issues as indicated in the application, be framed. 5. The application was contested by the plaintiff. The trial court by its impugned order, though reproduced the entire application, in a very short order, came to the conclusion that the issues as raised, does not arise and as the suit was at the stage of plaintiff's evidence and was a ten years old case, the application was liable to be rejected. 6. It is submitted by learned counsel for the petitioner that a bare perusal of the pleadings reveal that the petitioner had raised substantial issues in the written statement regarding the nature of property in the hands of Kuber Singh - father of the defendant No.1-petitioner and plaintiff and indicated that even during his lifetime, the petitioner had succeeded to the said properties on account of orders passed by the competent authority. However, while framing the issues, no issue in this regard was framed, which issue does arise in the case. 7. However, while framing the issues, no issue in this regard was framed, which issue does arise in the case. 7. Further submissions were made that the issues as framed by the trial court does not take care of the counter-claim filed by the petitioner and, therefore also, the additional issues were required to be framed and the order passed by the trial court only on account of the suit being ten years old, cannot be sustained. 8. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 9. It is true that an additional issues can be framed at any stage of the case and merely because a case was at the stage of plaintiff's evidence and was ten years old case, the application for the said reason alone, could not have been rejected by the trial court. 10. However, on perusal of the entire record as produced by the petitioner, it is apparent that the plea raised by the petitioner in the additional pleas only pertains to the case in rebuttal of the plaintiff's case that the property in question was joint family property i.e. it was individual property of defendant No.1- petitioner. The said plea essentially is in rebuttal to issue No.1, which pertains to the plea of the suit property being joint as raised by the plaintiff. 11. Once the issue No.l has been framed by the trial court, the petitioner while leading his evidence, would be free to lead evidence qua the additional pleas and exhibit documents pertaining to the plea already taken and as such there is no necessity to frame an additional issue pertaining to the plea taken in the additional pleas and as such, the rejection of the application qua the plea as raised in the additional pleas, does not call for any interference. 12. So far as the plea regarding framing of issues based on the counter-claim is concerned, issues No.10 and 11 clearly deals with the counter-claim as raised by the petitioner and, therefore, the burden has been cast on the petitioner to prove the said issues. Nothing different has been claimed in the application. 13. In view of the above discussion, the order passed by the trial court does not call for any interference. There is no substance in the writ petition, the same is, therefore, dismissed.