Court No. - 39
Case :- MATTERS UNDER ARTICLE 227 No. - 938 of 2019 Petitioner :- Inayat Ullah Respondent :- Hemendra Kumar Gupta Counsel for Petitioner :- Rafiuddin Ansari Counsel for Respondent :- Pramod K. Gupta
Hon'ble B. Amit Sthalekar,J.
Heard Sri R.U. Ansari, learned counsel for the petitioner and Sri Pramod K. Gupta, learned counsel for the respondents.
The petitioner in the writ petition is seeking quashing of the order dated 12.02.2018 passed by the Civil Judge (Senior Division), Allahabad as well as the order dated 07.01.2019 passed in Civil Revision No.Nil of 2018.
The plaintiff-petitioner filed an application under Order XIV Rule 5 (2) of the Civil Procedure Code, Paper No.264C in Suit No.496 of 1984 (Smt. Zarina Begum Vs. Smt. Shanti Devi) for striking out the issue no.2.
Issue no.2 is quoted as Annexure-3 to the writ petition and which is "whether the alleged sale deed dated 20.04.1977 and amended deed dated 13.05.1977 executed by late Amjad Husain in favour of plaintiff of House No.142 Johnstonganj, Allahabad is fraudulent and void document?"
The contention of the learned counsel for the petitioner-plaintiff is that the suit was filed for cancellation of the sale deed dated 16.11.1981 and there was no relief claimed in respect of the sale deed dated 20.04.1977.
The defendant-respondent, on the other hand, in his written statement has alleged that the amended deed of 13.05.1977 is a fraudulent and a forged document and was never executed.
The counsel for the petitioner submits that the issue with regard to the sale deed of 20.04.1977 could not have been framed as no counter claim was set up by the defendant-respondent.
In my opinion, the question as to whether the issue no.2 with regard to the validity of the sale deed of 20.04.1977 could be framed or not is a matter yet to be considered by the civil court. There is no decision with regard to issue no.2. Under Order XIV Rule 5, it is always open for the Court to at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matter. Order XIV Rule 5 C.P.C. reads as under:
"5. Power to amend and strike out issues-(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced."
Perusal of Order XIV Rule 5 (2) shows that the Court is fully competent to strike out any issue which appears to it to be wrongly framed or introduced, at any time before passing a decree.
On the facts of the case and having regard to sub-rule 2 of Order XIV Rule 4, I do not find any illegality or infirmity in the impugned orders.
The writ petition lacks merit and is accordingly dismissed.
However, considering that the suit itself is of the year 1984, with the consent of the learned counsel for the parties a direction is issued to the Civil Judge (Senior Division), Allahabad to decide the Suit No.496 of 1984 (Smt. Zarina Begum Vs. Smt. Shanti Devi) expeditiously preferably within a period of six months from the date of receipt of a certified copy of this order.
Needless to say that no unnecessary adjournment will be granted to either of the parties.
Order Date :- 22.2.2019 N Tiwari