Heard counsel for the parties.
One Sardar Mohan Singh, was the tenant of the two shops in dispute. He entered into an agreement to purchase the said shops on 29.11.88 with the owner and landlord Ashok Kumar. On the basis of the aforesaid agreement be instituted a suit for specific performance. During the pendency of the suit the land was acquired and the shops were demolished by the acquiring body. In this view, Ashok Kumar moved application for amendment of the written statement to bring on record the aforesaid facts. The said application was allowed on 27.3.2010. Thereafter, Ashok Kumar moved another application on 24.4.2010 for framing an additional issue for the adjustment of arrears of rent interest etc. in the earnest money liable to be refunded. This application has been rejected by the court of first instance and the revision thereto has also been dismissed. Thus, the petitioner Ashok Kumar has filed this writ petition challenging the aforesaid two orders.
Law is well recognized that issues in a suit are to be framed on the basis of the pleadings of the parties. The suit in dispute is one for specific performance of the agreement to sell dated 29.11.88 or at best for the refund of part of sale consideration paid in advance. Whether the tenant is plaintiff Sardar Mohan Singh is in arrears of rent or not is not the subject matter of the suit. The additional issue which has been suggested by the petitioner as such is definitely not a relevant issue which can be said to be arising in the suit.
Apart from the above, the issue which is sought to be raised by the petitioner appears to be in the nature of counter claim and no counter claim having been preferred as provided under Order VIII Rule 6-A and further no court fees having been paid thereon the Trial Court is correct in holding that such an issue cannot be permitted to be raised. Accordingly the courts below have committed no error in rejecting the aforesaid application.
The order impugned is of an interlocutory nature which otherwise also does not require any interference at this stage.
In view of the aforesaid facts and circumstances, I am not inclined to exercise my discretionary jurisdiction under Article 226 of the Constitution of India in the matter. The writ petition is misconceived and is dismissed.
Order Date :- 8.10.2010 piyush