JUDGMENT :

1. This writ petition under Article 227 of the Constitution of India has been preferred against the order dated 19.5.2017 passed by the Trial court, whereby the application filed by the petitioners-non applicants no. 1 to 3 (for short, ‘the non applicants’) for amending/framing the issues has been dismissed. Also under challenge is the order dated 8.8.2016 passed by the Trial Court, whereby the trial court exercising the jurisdiction suo-moto deleted the issues, which were inadvertently framed on 5.5.2016 and posted the matter for final arguments instead of evidence.

2. Facts of the case are that the applicants filed an application under Section 38 of the Rajasthan Public Trust Act, 1959 (for short, ‘the Act of 1959’) with regard to an alleged irregularity in the Adarsh Hitkarini Trust (for short, the Trust’) before Assistant Commissioner (Ist), Devasthan Department, who passed an order dated 3.7.2013 directing the applicants to file an application under Section 40 of the Act of 1959 before the District Judge, seeking a direction for proper management of the Trust. Accordingly, the applicants filed an application under Section 40 of the Act of 1959 before District Judge, Jaipur Metropolitan, Jaipur. On 5.5.2016, issues were framed by the District Judge and the matter was posted for applicants’ evidence. Thereafter the case was transferred to Addl. District Judge No.10, Jaipur Metropolitan, Jaipur, who taking into consideration the fact that the application was filed under Section 40 of the Act of 1959 and in view of the provisions thereof neither issues were required to be framed nor evidence was required to be taken, vide his order dated 8.8.2016 deleted the issues, which were inadvertently framed on 5.5.2016 and instead of applicants’ evidence, posted the matter for final arguments. Subsequently on 20.2.2017, the non applicants filed an application under Order 14 Rule 5 CPC seeking to amend/frame the issues, which came to be dismissed by the said Court vide its order dated 19.5.2017. Hence, this writ petition.

3. Learned counsel for the petitioners-non applicants submits that on 5.5.2016, the District Judge framed as many as 5 issues and the applicants sought time to lead evidence. Thus, the applicants had agreed that framing of the issues was necessary in order to decide the application under Section 40 of the Act of 1959. Without filing any application by the applicants and merely on the basis of oral submissions, the trial court vide its order dated 8.8.2016 exercised the jurisdiction suo moto and deleted the issues which were framed on 5.5.2016, that too after a period of more than 3 months. The learned counsel further submits that once the parties had agreed to adopt a particular procedure for inquiry and even acted thereupon, it was not open for one of the parties to deviate therefrom or to call upon the trial court and that too, orally to recall the previous order. Similarly, it was not proper for the trial Court to have proceeded to recall its earlier order by re-writing a second order. She further submits that for conducting inquiry under Section 40 of the Act of 1959, District Judges frames the issues and the said practice has been adopted in number of cases.

4. In support of her contentions, she has placed reliance on the following judgments:

(i) Jagjeet Singh Lyallpuri (dead) through legal representatives and Others Versus Unitop Apartments and Builders Ltd. reported in (2020) 2 Supreme Court Cases 279

(ii) Gopal Singh Versus State Cadre Forest Officers' Assn. and Ors. reported in (2007) 9 SCC 369.

(iii) Leeladhar Versus Bherubagh Jain Tirth and others (decided by the Coordinate Bench of this Court at Principal Seat, Jodhpur vide judgment dated 18.3.2009 in SBCMA No. 903/2001)

(iv) Shyam Kanwar & Anr. Versus Laccha Ram & Ors. (S.B. First Appeal No. 595/2018).

5. On the other hand, learned counsel for the applicants submits that the application was filed under Section 40 of the Act of 1959, to which provisions