The principle of waiver is applicable in regard to the framing of issues, and a party can waive the issue.

Rakesh Kumar Jain, J.

1. This revision arises out of an order dated 18.2.2008 passed by the Civil Judge (Jr. Division) Narnaul dismissing the application of the plaintiffs/petitioners wherein they had prayed for framing of additional issue as well as for leading additional evidence.

2. The petitioners have claimed that out of the pleadings of the parties, one issue, namely, "Whether disputed property is coparcenary property of Hindu undivided family, if so its effect" arises but has not been framed and they had also prayed for leading additional evidence so as to bring on record some judgment and decree and revenue records. The case of the defendants/ respondents is that out of nine issues framed by the trial Court, issues No. 1 and 3 covers the contentions of the plaintiffs, therefore, there is no need to frame any separate and distinct issue and that the issues were framed on 1.2.2002 and the plaintiffs evidence was concluded on 1.3.2006 but at no stage, they had sought any issue which is now being claimed and that the parties have gone to the trial with full knowledge of each others case and led their evidence, therefore, no separate issue is required. In respect of the additional evidence it was alleged that the plaintiffs had earlier moved an application on behalf of proforma defendant for leading evidence which was disallowed by the Court. Then, the plaintiffs tried to introduce his documents by way of rebuttal evidence which was also disallowed and now they wanted to bring some documents on record by way of additional evidence at this stage, though without there being any issue framed in this regard.

3. On the contentions of both the counsel for the parties, learned trial court had noticed the issues which were framed on 1.2.2002 and are reproduced as under :-

(i) Whether the plaintiffs and proforma defendant are co-owner in joint possession of the suit property ? OPP

(ii) Whether the contesting defendant has right, title or interest in the suit property ? OPP

(iii) Whether the judgment and decree dated 7.11.87 and dated 31.10.80 are illegal, null and void ? OPP

(iv) Whether the plaintiffs are entitled for the relief claimed in the suit ? OPP

(v) Whether the suit is not maintainable ? OPD.

(vi) Whether the plaintiffs are estopped to file the suit by their own act and conduct ? OPD.

(vii) Whether the suit is time barred ? OPD

(viii) Relief.

4. It was found by the Court that at the time of framing of the aforesaid issues, it was specifically recorded by the trial Court that "No other issues are pressed or claimed. If any other issue arises, the same is waived. "The suit was filed in the year 1998. Issues were framed on 1.2.2002, the evidence was closed by the plaintiff on 1.3.2006 and the case was adjourned for rebuttal evidence on 1.4.2007. At that stage, the present application was filed for framing of additional issue and for leading additional evidence. The learned trial court found the application to be an act of prolonging the suit and dismissed the same. It is argued by the learned counsel for the petitioners that the learned trial Court has erred in not framing the issue with regard to the nature of the property which arises from the pleadings of the parties as a result of which they could not lead proper evidence. It is also submitted that framing of issue is the duty of the Court and its failure would cause miscarriage of justice. On the other hand, counsel for the respondents has argued that parties to the suit had faced the trial fully knowing the case of each other and led all the evidence not in support of their contentions but not refutation of those on the other side, therefore, it cannot be said that the absence of the issue which is allegedly sought by the plaintiffs/petitioners, would be fatal to the case. It is also submitted that it was specifically recorded by the trial Court during the proceedings that neither any other issue has been pressed nor claimed and if any other issue arises the sam