Sr. No. 120

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CR-2312-2021

Date of decision: 11.10.2021

Rajesh Saini

…Petitioner

Versus

Harish Saini and others

…Respondent

CORAM: HON’BLE MR. JUSTICE ARUN MONGA

Present:

Mr. Harkesh Manuja, Advocate,

for the petitioner.

***

ARUN MONGA, J. (ORAL)

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.

SHALINI BHATIA

2021.10.14 18:32

I attest to the accuracy and

integrity of this document

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