Timely application for framing additional issues and the relevance of proposed issues at the stage of final decision.

Hon’ble V.K. Bist, J.

Plaintiff/respondent instituted a suit for rent and ejectment against the defendant/revisionist, which was registered as S.C.C. Suit No.05 of 2003 “Smt. Rajkumari Vs. Shri Naresh Sethi”. In paragraph nos.4 & 5 of the plaint, the plaintiff/respondent alleged that vide notice-dated 23.12.2002, the defendant was called upon to pay the arrears of rent and charges together with interest and cost of the notice. The tenancy of the defendant was also terminated by the said notice. The notice was sent to the defendant/revisionist at the residential address as well as at the business address by registered A.D. post as well as by U.P.C. Both the registered A.D. envelopes and the U.P.C. envelopes, addressed at the business address of the defendant/revisionist, returned unserved. The U.P.C sent at the residential address of the defendant/revisionist was served on 24.12.2002. However, to avoid any objection regarding non-receipt of the notice, a copy of the notice was affixed in presence of two witnesses in the verandah situated at the entrance of the said property. Thus, the notice shall be deemed to have been served upon the defendant/revisionist on 25.12.2002. The defendant/revisionist filed his written statement. In paragraph no.4 & 5 of the written statement, the defendant/revisionist denied that by notice-dated 23.12.2002, the tenancy of the defendant/revisionist was terminated. The defendant/revisionist also denied the receipt of the notice. It was also denied that notice was sent at the residential address as well as at the business address of the defendant/revisionist. It was also denied that copy of the notice was affixed in presence of two witnesses in the verandah situated at the entrance of the said property. The defendant/revisionist also denied that notice shall be deemed to be served upon the defendant/revisionist on 25.12.2002. The trial Court framed 8 issues on the basis of pleadings of the respective parties on 04.10.2004 in presence of both the parties. While framing issues, the parties to the suit did not press for framing of any other issue. The plaintiff/respondent filed examination-in-chief of P.W.-1 on 19.10.2004 and he was cross-examined on 14.09.2005 by the defendant/revisionist. Thereafter, the defendant/revisionist evidence was concluded on 17.02.2009. After concluding the evidence of defendant/revisionist, the matter was fixed for arguments, but same was adjourned on various occasions. The arguments of the plaintiff/respondent were advanced and the matter was fixed for the arguments of the defendant/revisionist. On the date fixed for defendant’s arguments, the defendant/revisionist filed an application stating therein that the defendant/revisionist has taken a plea in paragraph no.4 of his written statement that notice dated 23.12.2002 was never received by the defendant/revisionist and no issue has been framed on the said fact. The defendant/revisionist prayed that issue no.9 may be framed as “Whether the notice dated 23.12.2002 was served on defendant, if so, in what manner”. The learned Judge Small Cause Court (for short SCC) rejected the application of the defendant/revisionist by stating therein that evidence in respect of proposed issue is already there on record. The learned Court also observed in its order that the application has been moved by the defendant/revisionist to delay the proceedings of the case.

2. Mr. V.K. Kohli, Senior Advocate for the revisionist referred Order 14 Rule 5 of the C.P.C. and submitted that additional issues can be framed at any time before passing a decree. He submitted that since the proposed issue is very much relevant for deciding the case, the learned Judge SCC has erred in rejecting the application of the defendant/revisionist. By relying on the judgment reported in 2012 AIR SCW 3017- A. Shanmugam Vs. Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, he submitted that it is the duty of the Court to frame all relevant issues. H

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