NAVJIVAN CONSTRUCTION COMPANY v. SATISHBHAI BABUBHAI PATEL

1.(cid:9)The plaintiff by this revision application under section 115 of C.P.C., 1908 challenges the order of the trial court dated 30th March,1999 under which suo motu it has substituted in place of issues already framed, the issues enumerated therein.

2.(cid:9)Learned counsel for the plaintiff- petitioner contended that the order of the trial court is wholly perverse. The issues have been framed in the suit on the basis of the pleadings of the parties by the court itself on 4th March, 1997. Thereafter, the evidence of both the parties have been recorded and arguments have also been heard. Instead of giving the judgment, at that stage, learned trial court suo motu passed this order which is not permissible to it. It has next been contended that none of the parties to the suit made any grievance that the issues framed in the suit are not proper or that some additional issues are to be framed. Lastly, it is contended that the parties have understood their cases which they have to prove in the suit on the basis of issues framed they lead the evidence and now in view of this order, fresh evidence has to be led. This whole exercise which has been undertaken by the court will go waste.

3.(cid:9)Shri S.I. Nanavaty, learned counsel for the respondents, on the other hand, contended that this revision application is not maintainable as it is not the case decided. It is next contended that Order 14 Rule 5, C.P.C. empowers the trial court to frame the additional issues at any stage of the suit and that what precisely the court did. Lastly, it is contended that the order if allowed to stand will not occasion any failure of justice or will not cause any irreparable injury to the petitioners. In support of his contention, he placed reliance on the decision of the Orissa High Court in the case of Kishorelal vs. Devilal reported in AIR 1971 ORISSA 191 and that of Allahabad High Court in the case of M/s. Kisan Udyog vs. United Bank of India reported in AIR 1990 ALLAHABAD 8.

4.(cid:9)I have given my thoughtful consideration to the submissions made by the learned counsel for the parties.

5.(cid:9)Shri S.I. Nanavaty, learned counsel for the respondents does not dispute the facts (i) that the issues have been framed earlier by the court with the consent of the parties, (ii) that the defendants have not raised any objection against those issues at any point of time, (iii) that the defendants have produced their evidence on those issues without any objection, and (iv) the evidence has been completed and the arguments have also been made. The defendants have not raised any objection that the issues are not framed in accordance with the pleadings of the parties.

6.(cid:9)It is a case where the plaintiff has also not raised any objection against the issues framed in the suit. I fail to see any justification in the approach of the learned trial court to substitute the other issues when the issues were framed with the consent of the parties. The parties are the best judge for their cases. They understood their case and they understood the issues which are necessary in the suit and which have been framed and they have not objected at any stage and on the issues they led the evidence. Power under Order 14 Rule 5 C.P.C. may be there with the court to frame the additional issues but it is a case where the learned trial court has not framed any additional issue which it considered necessary to be framed in the suit, but what it did, it has substituted its own issues for those issues which have been framed on the basis of the pleadings of the parties with their consent.

It is understandable where an aggrieved party raised an objection against the framing of the issues and make out a case that in case suitable issue is not amended it will cause any prejudice but that is not the case here. Suo motu the court has passed this order and that too at the stage where the arguments have also been completed in the suit. This is not the matter where those issues which have been framed are to be substituted by other issues. Merely because what the court felt that the issues were not framed in accordance with the pleadings of the parties, the parties, at the cost of repetition it is stated, are the best person to know their pleadings and what is their case in their pleadings. In such matters, where none of the parties raised any objection against the framing of the issues, suo motu exercise of power by the court under Rule 5 of Order 14 of C.P.C. is difficult to appreciate.