The duty of the court to frame proper issues for adjudication and the prejudice caused by improper framing of issues.

R.L. Anand, J. (Oral) - This revision petition has been directed against the order dated 13th September, 1999 passed by the Civil Judge (Junior Division), Gurgaon, but dismissed the application of the petitioners under Order 14, Rule 5 of the Civil Procedure Code for framing of the additional issue.

2. The plaintiff-petitioners filed a suit for declaration with a consequential relief of permanent injunction and in the alternative consequential relief for joint possession, in respect of the land detailed in the head-note of the plaint alleging that there are three sets of defendants represented by their different lawyers and these defendants have filed three written statements. Whereas the stand of defendant Nos. 13 and 14 in their written statement is that they have become owners of the land in question by way of adverse possession, while the stand of defendant Nos. 2 to 12 is that they are occupying the land on account of the fact that they are the occupancy tenants. This part of the defence of the defendants has been specifically denied by the plaintiffs in their replication. In this view of the matter, when the defendants have taken a specific plea with regard to adverse possession and occupancy tenants, it was obligatory on the part of the court to frame a specific issue in this regard, which has not been framed at the time of framing of the issues and, therefore, an additional issue may be framed for proper adjudication of the matter.

3. Notice of the application was given to the respondents and he filed a reply to the application, and it was pleaded by them that the present application has been moved after a lapse of 9 years without assigning any reason. Moreover, no additional issue is required to be framed and that the controversy between the parties can be well covered by the issues which had already been framed by the trial Court which, in fact, the plaintiffs want to fill in the lacuna of this case by making proper application which is mala fide and is not legally maintainable.

4. The trial Court dismissed the application of the petitioners holding that it is a belated one and no further issue is required to be framed. In this manner, the application was dismissed vide impugned order dated 13th September, 1999. Hence the present revision.

5. I have heard Shri Sanjay Vij on behalf of the petitioners and Shri C.B. Goel on behalf of the respondents and with their assistance, have gone through the records of this case.

6. After the completion of the pleadings, it is the duty of the Court to go through them in a thorough and in the right perspective so that issues on a question of particular law and fact are framed. It is the primary duty of the Court to frame an issue and if the Court is not discharging its obligation in framing of the proper issue arising between the controversy raised by the parties in their pleadings, certainly the party affected, on account of this omission, is in its jurisdiction to file an application for recasting of the issue or for the framing of the additional issue. The delay in the trial scuttles the rights of the parties because if the issues are not properly framed, it will certainly give a serious prejudice to the parties. Equally, is the law that when the parties have led evidence by knowing the case of each other, then the onus with regard to the issues remains immaterial. In the present case, the plaintiffs have filed a suit for declaration that they are the owners in possession of the property by virtue of the fact that the land was earlier with Dholidars who had left and, therefore, it had reverted to the owners.

7. On the contrary, the stand of some of the defendants is that they are occupying the property in the capacity of occupancy tenants and there is defence of some of the defendants that they are in possession of the land by way of adverse possession and they have become the owners thereof. In these circumstances, it was obligatory on the part of the Court to frame a s