CR No. 5669 of 2010

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In the High Court of Punjab and Haryana, Chandigarh.

CR No. 5669 of 2010 (O&M)

Date of Decision: 10.09.2010

Nirmal Singh

....Petitioner

Versus

Harbans Singh

....Respondents.

Coram:- Hon'ble Mr. Justice Alok Singh

1.Whether reporters of local news papers may be allowed to see

judgement ?

2. To be referred to reporters or not ?

3. Whether the judgement should be reported in the Digest ?

Present: Mr. Arihant Jain, Advocate

for the petitioner.

...

Alok Singh, J.(Oral)

Defendant - petitioner is assailing the order dated 9.8.2010

passed by the Additional Civil Judge, Senior Division, Sangrur, thereby

rejecting the defendant’s amendment application moved Order 6 Rule 17

CPC.

Brief facts of the present case, inter-alia, are that the plaintiff

has filed suit for possession by redemption against the defendant

specifically pleading that plaintiff has mortgaged the shop in favour of the

defendant vide mortgage deed dated 3.8.1994 for mortgage money of

Rs.10,000/-. Defendant - petitioner herein filed written statement stating

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therein that he has taken the shop in dispute on rent from the plaintiff and

has paid Rs.10,000/- as security to the plaintiff and in lieu of the security,

alleged mortgage deed was executed. Thereafter, trial commenced and

plaintiff’s evidence was recorded. When the case was listed for defendant’s

evidence, present amendment application was moved by the defendant

seeking permission from the Court to add in paragraph 2 of the written

statement pleading to the effect that earlier also, defendant was the tenant

of the father of the plaintiff and he wanted bigger shop, hence he took the

present shop from the plaintiff as a tenant on rent.

The trial Court has observed that the fact that plaintiff was

tenant of the father of the plaintiff of another shop, is not relevant for the

purpose of deciding the lis between the parties. Shop under tenency of the

defendant from the father of the plaintiff is not in dispute. The trial Court

has further observed that the defendant was well aware that he was tenant of

the plaintiff’s father of another shop and that defendant could not prove that

despite of due diligence, he could not take this plea which was well within

his knowledge at the time of filing of the written statement.

In the present case, the only dispute is as to whether the

defendant is mortgagee or tenant of the property in dispute as alleged by the

defendant.

I find no perversity or illegality in the finding recorded by the

trial Court. Amendment was rightly refused.

Learned counsel for the petitioner further argued that while

rejecting the amendment application, the trial Court has also framed the

issues, which were not earlier framed.

It is settled position of law that if the parties are aware about

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the dispute/lis between the parties, non-framing of issues by the Court is

always not fatal, if the parties knowing well about the dispute between

them, have led evidence on the lis pending between the parties. However,

there seems to be procedural lapse by not framing issue before the plaintiff's

evidence on the part of the trial Court. The trial Court has rightly framed

issues which should have been framed before the plaintiff's evidence.

I find support from the judgement of the Apex Court in the

mater of Nedunuri Kameswaramma Vs. Sampati Subba Rao, AIR

1963 SC 884, wherein it was held as under:-

“Where the parties fully knowing the rival case and led all the

evidence not only in support of their contentions but in

refutation of those of the other side, it cannot be said that the

absence of an issue was fatal to the case, or that there was that

mis-trial which vitiates proceedings. The suit could not be

dismissed on this narrow ground, and also there is no need for

a remit, as the evidence which h