THE HON’BLE JUSTICE B.R. MADHUSUDHAN RAO

CIVIL REVISION PETITION No.2350 of 2022

ORDER:

The present Civil Revision Petition is filed under Article

227 of the Constitution of India, assailing the order dated 18.08.2022 passed in I.A.No.4 of 2021 in O.S.No.228 of 2014

by the I Additional Senior Civil Judge, Kothagudem.

2. As per track consignment, notice to sole respondent was

served on 24.11.2022.

3. Petitioner is the plaintiff and respondent is the

defendant in O.S.No.228 of 2014.

4. Respondent herein-petitioner-defendant has filed an application under Order XIV Rule 5 read with 151 of C.P.C praying the learned trial Court to frame the additional issues

which are as under:

1. Whether plaintiff handed over the suit

schedule mortgaged property to the defendant towards full and final settlement of mortgage debt? If so whether the defendant is in possession of the suit

property?

2. Whether the plaintiff is entitled to redeem

the mortgage debt without seeking recovery

of possession of suit property?

3. Whether the suit claim is barred by limitation?

4. Whether Kona Murali has no right to file the suit?

5. Whether the plaintiff is entitled to redeem the mortgage without depositing the mortgage debt?

6. Whether calculation of suit claim and the claim about future interest is in accordance with mortgage deed?”

4.2. It is stated in the affidavit that the respondent-plaintiff has filed a suit for passing of preliminary decree to execute a registered cancellation of mortgage deed in respect of the suit schedule property by cancelling Document No. 210 of 2000 of the Sub-Registrar Office, Kothagudem, by collecting the amount due under the said mortgage deed from the plaintiff, and for passing a final decree. The petitioner-defendant has filed his written statement stating that the suit claim is barred by limitation, that the plaintiff never executed the power of attorney in favour of Mr. Kona Murali and that the respondent-plaintiff has delivered possession of the suit schedule property to him towards full and final settlement of the mortgage debt.

5. Respondent-plaintiff has filed his counter, contending that the issues framed by the Court are in accordance with law, and that the issues requested by the petitioner-defendant are not maintainable, since the petitioner did not file any counterclaim regarding the claim of adverse possession and handing over the property towards full and final settlement of the suit claim. It is further stated that the respondent-plaintiff has already issued a legal notice to the petitioner-defendant to receive the mortgage amount along with interest and to execute the redemption deed, and prayed for dismissal of the said application.

6. The learned trial Court, after going through the material on record, has allowed the application filed by the Respondent-

petitioner, which is impugned in the Civil Revision Petition.

7. The learned counsel for the petitioner submits that the order passed by the learned trial Court is on presumptions and surmises and is against the principles of law. The additional issues sought to be framed cannot go beyond the pleadings, and the order has been passed without proper application of mind. There is no cogent reasoning as to how the amount ordered could have been passed in the light of the objections raised by the petitioner-respondent and prayed to allow the C.R.P.

8. Before answering the contentions of the counsel for the petitioner it is appropriate to refer Order XIV Rule 5 of C.P.C which reads as under:

“5. Power to amend and strike out issues.-(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.

(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.”

9. Learned counsel for the petitioner has