Case :- MATTERS UNDER ARTICLE 227 No. - 3981 of 2018 Petitioner :- Madan Mohan Respondent :- Sharda Saharan And 5 Others Counsel for Petitioner :- Awadh Behari Singh,Pradeep Kumar Counsel for Respondent :- Pankaj Agarwal
Hon'ble Vivek Kumar Birla,J.
Heard Sri Pradeep Kumar, learned counsel for the petitioner and Sri Pankaj Agarwal, learned counsel appearing for the respondent no. 1.
Present petition has been filed seeking setting aside the order dated 17.4.2018 passed by the Civil Judge (Senior Division) Gautam Budh Nagar in Misc. Case No. 263 of 2014 (Madan Mohan Vs. Sharda Saharan and others) filed as Annexure-18 to the petition. A further prayer to direct the Civil Court to decide the issue of fraud before adducing evidence in Misc. Case No. 263 of 2014 filed by the petitioner under Order 21 Rule 97 CPC and also to direct the Civil Judge (Senior Division), Gautam Budh Nagar to frame and decide the issue of fraud as preliminary issue before directing to adduce any other evidence has also been made.
By the impugned order the learned Civil Judge has deferred decision on Paper No. 155Ga 2 filed by the petitioner for summoning witness no. 1, the writing expert and the competent authority/Chairman of the NOIDA as without summoning them they will not come to the Court. After considering the facts and circumstances of the case including the fact that for the last 40 dates the petitioner herein is not coming forward to lead evidence, therefore, the Court has directed that he himself should be present for examination and thereafter the application of the petitioner would be considered. The order-sheet reflects that on subsequent dates the petitioner was not present in Court.
Submission of learned counsel for the petitioner is that the first the application is to be considered and it is only thereafter the petitioner should be called for examination. He submits that issue of fraud should be framed as a preliminary issue. He further submits that the petitioner was not made party to the suit. Further submission of learned counsel for the petitioner is that the decree is based on fraud and ample assertions in this regard have already been made in the application filed by the petitioner under Order 21 Rule 97 CPC.
Per-contra, Sri Pankaj Agarwal, learned counsel appearing for the respondent no. 1 submits that the father of the petitioner had filed an impleadment application in the original suit proceedings which was rejected and thereafter till his death the matter was not pursued by his father, therefore, now at this stage when the suit is of the year 1986 and the decree is of the year 1991 which was ultimately upheld by this Court in second appeal and the execution proceedings are pending for the last eight years the application is absolutely malafide and is only to linger on the matter as while disposing of Writ C No. 48182 of 2014, Mdan Mohan Vs. Smt. Sharda Saharan & 4 others interim protection was granted that ill the decision of the application under Order 21 Rule 97 CPC, the execution proceeding shall remain stayed.
Order 14 Rule 4 CPC clearly provides that Court may examine witnesses or documents before framing issues. On 14 Rule 5 CPC further provides that the Court may any time before passing a decree amend the issues or frame additional issues.
Learned counsel for the petitioner could not dispute that necessary additional issues can be framed at any stage till delivery of judgment.
Under such circumstances, I do not find any good ground to interfere in the order impugned herein whereby the court below has deferred the decision on Application no. 155Ga 2 filed by the petitioner. The petitioner is at liberty to press the aforesaid application on merits before the court below.
This writ petition is, accordingly, dismissed. No order as to costs.
Order Date :- 30.5.2018 p.s.