Judgment

Mr. Arun Monga, J.

Petition herein, inter alia, is for setting aside an order dated 02.09.2021 passed by learned Civil Judge (Junior Division), Panipat whereby an application filed by the petitioner/plaintiff for framing of an additional issue was rejected.

2. Following issues were framed vide an order dated 09.10.2015 passed by trial court:-

“1. Whether the plaintiff is entitled to the relief of separate possession by way of partition as mentioned in the head note of the plaint? OPP.

2. Whether the plaintiff is entitled to the relief of permanent injunction restraining the defendants forever from interfering in the peaceful possession of the plaintiff or to changing the nature of the suit property or creating any third party rights over the same in any manner? OPP

3. Whether the suit of the plaintiff is not maintainable? OPD

4. Whether the plaintiff has no locus standi and cause of action to file and maintain the present suit? OPD

5. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD

6. Relief.”

3. Their sufficiency was never challenged until after evidence was led and closed.

4. Once the evidence of respondents/ defendants was closed on 28.02.2020, an application dated 16.03.2021 was filed seeking framing of following additional issue:-

“i. Whether the will bearing Vasika No.470/3 registered with Sub-Registrar, Panipat on 14/02/2006 by Smt. Ram Dei Widow of Sh. Om Parkash is free from undue influence and has been actually got registered by Smt. Ram Dei when she was in full senses and as such is not liable to be set-aside. OPD”

5. Perusal of the impugned order herein passed by the trial Court reflects that the application seeking framing of additional issues has been primarily dismissed on the ground that issue has already been decided qua validity and declaration of Will and, therefore, application seeking to frame additional issue on the ground that the Will has been executed free from undue influence is misconceived. Relevant of the reasoning recorded by the trial court is as below:-

“6. Perusal of case file shows that vide order dated 08.08.2019 passed by the undersigned, Civil Suit No.284/2015 wherein plaintiff has basically sought a relief of declaration to the fact that aforesaid Will dated 14.02.2006 alleged to be executed by Ram Dei in favour of defendant No.1 is illegal, null and void and not binding on the rights of plaintiff along with the consequential relief of permanent injunction, has already been consolidated with the other/ present case bearing CS No.917/2015. The aforesaid case bearing CS No.284/2015 was at the stage of rebuttal evidence, if any and arguments when the said Civil Suit was consolidated with the present Civil Suit bearing No.917/2015 wherein plaintiff has sought the relief of separate possession by way of partition by challenging the aforesaid impugned Will dated 14.02.2006 as illegal, null and void and not binding on his rights along with consequential relief of permanent injunction. Perusal of case file further shows that issues in the said case bearing No.CS/284/2015 were framed by Ld. Predecessor Court vide order dated 09.10.2015 and the issue No.1 was framed as under: -

1. “Whether the plaintiff is entitled to a decree for declaration as prayed for? OPP”

and the plaintiff/ applicant has already led his oral as well as documentary evidence by tendering his duly shown affidavit Ex.PW1/A and the perusal of its Paragraphs No.5 and 6 clearly transpires that when he has already led his evidence in order to challenge the legality and the validity of aforesaid impugned Will dated 14.02.2006 corresponding to his pleadings, then this Court fails to understand when both the afore-stated Civil Suits have already been consolidated by the Court and the p