Rakesh Gupta v. Kamlesh Gupta & ANR

IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH Date of decision:25.01.2016 Rakesh Kumar ... Petitioner Vs.

Kamlesh Gupta and another ... Respondents

CORAM:

HON'BLE MR. JUSTICE AMIT RAWAL 1.

Whether reporters of local newspapers may be allowed to see judgment?

2.

To be referred to reporters or not?

3.

Whether the judgment should be reported in the Digest? Present:- Mr. Ravish Bansal, Advocate for the petitioner.

AMIT RAWAL J. (Oral) Learned counsel for the petitioner, in support of his averments has raised two fold arguments which read thus:- i) issues already framed and the onus has been placed upon the defendants, whereas, it should have been upon the plaintiff;

ii) the order declining the application seeking framing of the proper issue is lacking reasons.

I have heard learned counsel for the petitioner and appraised the paper book. The learned trial Court framed the issues on 6.5.2014 which read thus:- "i) Whether the plaintiff is not entitled to possession as prayed for ? OPD ii) Whether the plaintiff is not the sole heir of the

estate left by Babu Ram? OPD iii) Whether deceased Babu Ram was the owner of disputed shop or not? OPD iv) Whether defendant No.2 is Rakesh Kumar or Rajesh Kumar? OPD v) Whether shop in question is in possession of Pawan Kumar son of Kulwant Rai or not? OPD vi) Whether defendant No.2 has been wrongly impleaded in the present suit? OPD vii) Whether the mortgage deed was never executed in presence of defendant NO.2? OPD viii) Whether the plaintiff has no cause of action to file the present suit? OPD ix) Relief."

Application for amendment of issues and to frame the following issues has been filed and the same reads thus:- 1.

Whether the shop in dispute was mortgaged by the plaintiff in favour of defendant No.1 vide Mortgage Deed dated 22.09.2009 and put him in possession of the shop in dispute under the alleged mortgage? OPP 2.

Whether the defendant No.2 signed the mortgage deed on behalf of the mortgagee? OPP 3.

Whether Rakesh Kumar defendant No.2 is also known as Rajesh Kumar? OPP 4.

Whether the defendant No.1 put Rakesh Kumar

defendant No.2 in possession of the shop and at present defendant No.2 is in possession of this shop? OPP 5.

Whether the plaintiff is entitled for decree of possession by redemption? OPP 6.

Whether Kamlesh Gupta plaintiff is the sole heir of Babu Ram s/o Chajju Ram, who was the original owner of the shop in dispute on the basis of Will dated 10.09.1997 as alleged by her? OPP and to delete issues No.1 to 8, framed on 06.05.2014." The order declining the application seeking framing of proper issue reads thus:- "Present:

Sh. S.P.Garg, Adv. Counsel for the plaintiff. Sh. Ritesh Singla, Adv. Counsel for defendant No.1. Sh. A.S.Bedi, Adv. Counsel for defendant No.2. Heard on the application u/o 14 Rule 5 CPC read with Section 151 CPC moved by the defendant No.2, in which he submitted that proper issues were not framed in this case, so amendment in the issues be made.

Reply filed. The plaintiff denied all the averments of the application moved by the defendant No.1 and prayed for dismissal of the application.

I have heard learned counsel for both the parties and have gone through the material on record. It is pertinent to mention here that proper issues were framed in this present case on 06.05.2014 after pleading both the

parties and there is no need to amendment in the issues. Issues already framed cover all the issues arisen between the parties. As such the present application finds no merit and the same is hereby dismissed.

Now to come up on 18.9.2015 for plaintiff evidence. Sd/-(Ruchi Kamboj) PCS CJ (JD)/PHul/26.08.2015"

The aforementioned order does not reflect the rival contentions of the parties, in essence, is lacking reasons, much less, cogent reasons. In my view, the trial Court ought not to have dismissed the application in the manner as has been done. The trial Court should be more careful in passing the orders on the interim application by taking into consideration the provisions of law, as well as, rival contentions of the parties.

In view of the aforementioned observations, the impugned order is set aside and the matter is remitted back to the trial Court to decide the application (Annexure P-4) afresh and particularly by assigning reasons as issues have already been framed and burden of proving the same has been placed upon the defendants which is not in the scope of Order 14 Rules 2 and 5 of the Code of Civil Procedure.

Accordingly, the revision petition stands allowed. (AMIT RAWAL) JUDGE January 25, 2016 savita