The main legal point established in the judgment is that the rejection of an application for framing additional issues with respect to a Will, which could cause prejudice to a party, is a mistake in fact and law.

JUDGMENT :

Vivek Singh Thakur, J.

Petitioner herein is plaintiff in the suit and respondent is defendant who shall be, hereinafter, referred as plaintiff and defendant respectively.

2. Present petition has been preferred by plaintiff against impugned order dated 4.1.2018 passed by learned Civil Judge (Junior Division), Kandaghat, District Solan, whereby application, filed by plaintiff under Order 14 Rule 5 of Civil Procedure Code (hereinafter referred to as CPC) for framing additional issues with respect to 'Will' propounded by defendant, to resist the claim of plaintiff and assert his right on the property, has been rejected, mainly on the ground that after allowing the application of plaintiff, filed for amendment of plaint earlier, plaintiff had filed amended plaint on 4.3.2017 whereas issues were framed on 24.3.2009 but despite filing of amended plaint, plaintiff did not pray for framing of additional issues, rather had preferred another application for amendment of plaint which was dismissed on 1.9.2017 and for not praying for framing of additional issues, as proposed now at that time, plaintiff is not entitled for making prayer for framing of additional issues at this belated stage and it is also observed in impugned order that by filing this application, plaintiff intends to get issues framed on those points which are not in pleadings nor have been challenged and even if for the sake of argument, if it is considered that Will, with regard to which additional issues have been proposed, has been challenged, then also at this belated stage, his prayer cannot be accepted for framing additional issues and in support of rejection of application, arguments of learned counsel for the defendant were also referred wherein it was contended that issues were framed in presence of learned counsel for the parties and at that time no prayer or objection qua any issue was raised and application of plaintiff was considered to have been filed only for exhausting the provisions of law to fulfill the requirements, which plaintiff would not get effected by way of filing an application for amendment of plaint earlier which has already been dismissed.

3. It is contended on behalf of plaintiff that defendant has claimed his right on suit property on the basis of Will No. 46 dated 3.9.2002 in his written statement and thereafter with permission of Court, replication was filed by plaintiff re-asserting his rights on the basis of Will dated 21.8.2005 relied upon by plaintiff in plaint to claim right on suit property and as the replication is part of pleadings, wherein it is pleaded that old Will is not genuine and valid Will and even if there is another Will in favour of defendant the same stands revoked by Will dated 21.8.2005, it was incumbent upon the Court, for duty cast thereupon under CPC, to frame issue with respect to 'Will' propounded by defendant and right to frame issues can never be waived as framing of issues, primarily, is duty of Court. It is also contended that case is yet at the stage of leading the evidence, therefore, there is no question of belated stage and moreover, the issue with respect to a document which has been asserted by one party and denied by other party can be framed at any time if not framed at earlier point of time and the issue related to Will No. 46 dated 3.9.2002, which is relevant to decide real controversy between the parties, rightly and finally, is necessary to be framed.

4. In rebuttal, it is contended on behalf of defendant that Will No. 46 of 2002 has not been challenged either in original plaint or in amended plaint despite the fact that reference of the said 'Will' has been made in written statement and there is no specific denial of the said Will No.46 and even if it is considered that denial of the said Will is there in replication, the said denial in replication would not give right to frame issues with respect to the said 'Will' as replication has not been supported by an affidavit as required under Or