The main legal point established in the judgment is that the Appellate Court can frame additional issues and refer them for trial to the Court whose decree is appealed from before the final hearing of the appeal, and a party can file an application for insisting on framing an additional issue based on the pleadings filed before the trial court.

JUDGMENT :

Rule. Rule is made returnable forthwith. Mr. Shrikrashna B. Solanke, learned counsel waives service for respondent nos.1 to 3. At the joint request of the parties, heard finally at the stage of admission.

2. By this petition, petitioner has challenged the order dated 09.06.2022 passed by the Adhoc District Judge-2, Bhoom thereby rejecting his application at Exh.23 in R.C.A. No. 63 of 2019 filed under the provisions of Order-41, Rule-25 of the Code of Civil Procedure (hereinafter referred to as the ‘CPC’) for framing of issue relating to limitation.

3. Considering the narrow controversy involved in the present petition, it is not necessary to narrate the detailed facts leading to the filing of the suit. Suffice it to state that suit was instituted by respondents herein for partition of the house property. The defendant (petitioner herein) filed his written-statement raising various defences. One of the defences raised by the defendant was that the suit was barred by limitation. Despite such plea of limitation being raised, apparently issue with regard to limitation was not framed by the trial Court which proceeded to decree the suit by its judgment and order dated 25.09.2019. Petitioner has filed appeal bearing RCA No.63 of 2019 challenging the judgment and decree passed by the trial Court. He moved application (Exh.23) under Order-41, Rule-25 of the CPC for framing additional issue of limitation on the ground that specific pleadings about suit being barred by limitation were raised in the written-statement. The application was opposed by respondents. The District Court has proceeded to reject the application by order dated 09.06.2022.

4. Mr. Chapalgaonkar, the learned Counsel for petitioner submits that the scheme of the provision of the Order-41, Rule-25 of the CPC is such that the Appellate Court, upon being satisfied that the trial Court has omitted to frame an issue, the Appellate Court itself can frame an issue and refer the same to the trial Court with a direction to take additional evidence, if required. He further submits that the trial Court is then expected to conduct trial of such additional issue and shall return the evidence along with its finding on the additional issue to the Appellate Court. Mr. Chapalgaonkar then refers to the provisions of the Order-41, Rule-26 of the CPC to contend that once the evidence and finding on additional issue is received from the trial Court, the party who is aggrieved by such finding is entitled to file a memorandum of objection to such finding before the Appellate Court. Mr. Chapalgaonkar therefore submits that the Appellate Court has erred in rejecting the application on the ground that the parties cannot insist for framing of additional issue before the Appellate Court in absence of the Appellate Court coming to a conclusion about omission on the part of the lower Court. Mr. Chapalgaonkar further submits that the issue of limitation goes to the root of the matter and that therefore the Appellate Court ought to have allowed the application.

5. Per contra, Mr. Solanke, the learned counsel appearing for respondents opposes the petition and supports the order passed by the Appellate Court. Inviting my attention to the findings recorded in the para-7 of the order, Mr. Solanke submits that despite having repeated opportunities before the trial Court, petitioner failed to make any application to the trial Court for framing of additional issue of limitation. He submits that the objection as to the limitation was taken in a casual manner in the written-statement and same was never pressed before the trial Court. Mr. Solanke further submits that the application for framing of additional issue was filed only when the appeal was taken up for final hearing so to prolong the hearing as interim order of stay to the operation of the decree is running in his favour. In support of his contention, Mr. Solanke relies upon decision of this Court in Ramdas and Ors. vs. Kalawati and Ors., MANU/