Suman Sachdeva & Ors. v. Jagjit Kaur & Anr.

16. It is submitted that the impugned order is illegal on the grounds since by the order No. 49/DHC/Gaz/G-7/VI.E.2(A)/2023 of the learned Trial Court, the Presiding Officer was transferred from SCJ-cum-RC, South-East, Saket to CMM, South-East, Saket with immediate effect. Further, it was the role of the presiding officer to pronounce the judgments/orders on the date fixed or maximum within a period of 2-3 weeks thereof, notwithstanding the posting/transfer. However, the same was not done in the prescribed time period.

17. In view of the aforesaid submission, learned counsel for the petitioners submitted that the instant petition may be allowed and the relief as prayed for by the petitioners may be granted.

18. Per Contra, the learned counsel appearing on behalf of the respondents vehemently opposed the instant petition and submitted that the same is liable to be dismissed being devoid of any merits.

19. It is submitted that the petitioners’ contentions are baseless as the learned Trial Court has exercised its jurisdiction in accordance with the settled legal propositions with regard to the provisions governing the power to amend and strike out issues in the CPC and there is no infirmity in the impugned orders passed by it.

20. It is submitted that the learned Trial Court has taken into consideration the entire facts and circumstances and it reached to the conclusion only after such due consideration, whereby, it dismissed the petitioners’ objections.

21. It is contended that the issues framed by the learned Trial Court has duly covered all the key point of disputes between the parties.

22. It is submitted that the learned Trial Court did not take the Admission- Denial filed by the petitioners on record and since it was not in the appropriate format as per CPC and there is no affidavit accompanying any such declaration of admission/denial of documents on behalf of the petitioners.

23. It is submitted that the learned Trial Court rightly observed that all the additional issues sought to be framed by the petitioners have already been covered by the issues framed by the learned Trial Court.

24. In view of the aforesaid submissions, the learned counsel for the respondents submitted that the instant revision petition is liable to be dismissed.

25. Heard learned counsel for the parties as well as perused the material on record.

26. It is the case of the petitioner that the learned Trial Court has failed to take into account the relevant issues such as if the respondent no. 1 is the legally wedded wife of the Late Mr. Rakesh Kumar Berry, the dispute pertaining to the Surviving Member Certificate, etc. and has not taken into account the Admission-Denial of documents placed on record by the petitioners.

27. In rival submissions, it is submitted that the present revision petition is not maintainable as the learned Trial Court has exercised its jurisdiction in accordance with the settled legal propositions with regard to the provisions governing the power to amend and strike out, issues in the CPC and there is no infirmity in the impugned orders passed by it.

28. It is further submitted that learned Trial Court has taken into consideration the entire facts and circumstances and only after such due consideration, it reached the conclusion, whereby, it dismissed the petitioners’ objections. It is further submitted by the respondents that the petitioners have failed to bring up any substantial question of law or any wrong exercise of the provisions of law by the learned Trial Court.

29. The respondents have placed strong reliance upon the observation made by the learned Trial Court and submitted that since all the additional issues have already been covered in the issues framed by the learned Trial Court earlier and therefore, the additional framing of issues is not required.

30. Therefore, this Court has to examine upon whether the impugned order passed by the learned Trial Court merits interference of this Court under Section 115 of CPC.

31. Before embarking upon the technical paraphernalia of the instant case, it is imperative to set out the scope of Order XIV Rule 5 of CPC under which the petitioners have filed an application for additional framing of issues before this Court. The said provision has been reproduced for reference hereunder: “[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.]”

32. As per the aforesaid provision, this Court is vested with the discretion to modify the existing issues framed by it or frame new issues in addition to the existing issues before passing of any decree for adjudication of dispute between the two parties. The Court also has the power to strike out any issue, before passing of any decree, which in the opinion of the Court is framed incorrectly and does not pertain to the controversy between the two parties.

33. The Courts can exercise power under the aforesaid provision either suo motu or in case there is an application filed by the party to the dispute.

34. The exercise of power in the aforesaid provision is controlled by the Order 14 Rule 3 of CPC, which stipulates that the Court has the powers to frame the issues from all or any of the materials placed on record by the parties such as the allegations of the parties in their pleadings or any answers to interrogatories, any document produced by the parties, any allegation made on oath by the parties or by any person present on their behalf or statement made by either appearing for the parties and on examination of witnesses or inspection of documents.

35. On the basis of the pleading of the parties, the learned Trial Court on 15th May, 2023 framed the following issues:- “1) Whether the plaintiff is entitled to decree of declaration that the plaintiff is the only class-I legal heir of deceased Dr. Rakesh Kumar Berry S/o late Sit. Ram Lal Berry? OPP.

2) Whether the plaintiff is entitled to decree of permanent injunction against defendants restraining them from interfering or creating any third party interest in the suit property i.e. H- 1181, Lajpat Nagar-1, New Delhi and vice versa? OPP & OPD.

3) Whether the appropriate court fees has not been paid by the plaintiff in the present suit OPD-3.

4) Whether late Sit. Rakesh Kumar Berry never married during his lifetime and expired issueless? OPD-1 & 2.

5) Whether late Sh. Rakesh Kumar Berry was survived by only class- 2 legal heirs i.e. deceased defendant no. I, defendant no.2 & 3?0PDl&2

6) Whether any oral family settlement took place during the lifetime of late Sit. Rakesh Kumar Berry with respect to the suit property by virtue of which deceased defendant no. I & defendant no.2 became owner of the suit property? OPD 1-2. 7)Relief.”

36. During the pendency of the suit, the defendant/petitioner herein filed an application on under Order XIV Rule 5 of the CPC, seeking framing of the following additional issues:-

3. Whether signature of Late Shri Rakesh Kumar Berry was forged on document annexed as Annexure-A[4] along with plaint by plaintiff? If yes, then by whom?

4. Whether counter-claimants/defendants are entitled for decree of declaration as per prayer clause A of counter claim?

5. Whether counter-claimants/defendants are entitled for decree of mandatory injunction as per prayer clause B of counter claim?

6. Whether counter claimants/defendants are entitled for decree of permanent injunction as per prayer clause C of counter claim?

7. Whether plaintiff has represented herself as an unmarried lady to the public at large in public domain documents?”

37. At this juncture, this Court will advert to perusing the observations made by the learned Trial Court in the impugned order. The relevant part of the impugned order is reproduced herein below:

already been framed on 15.05.2023. The additional issue sought to be framed with respect to specific documents i.e. surviving member certificate of the plaintiff or documents purportedly signed by Late Rakesh Kumar Berry produced by the plaintiff along with plaint, is not required. Proving the abovesaid specific documents would entitle plaintiff to claim the relief sought in the present suit, for which specific issue NO. 1 has already been framed on 15.05.2023. Furthermore, whether document i.e. surviving member certificate was issued after following due process of law or not, is not the dispute to be decided in the present suit. In case defendant no. 1 & 2 are aggrieved by the process followed in issuance of surviving member certificate, then that is a separate cause of action arising in favour of defendant no. 1 & 2, but the same cannot be adjudicated upon in the present matter. Hence, framing of additional issue no. 2 & 3 is not required in the present suit. 9. As already noted in separate order dated 24.02.2023, in the present case as well as counter claim bearing no. 1324121, titled as Mukesh Berry vs. Jagjit Kaur, trial of the present suit and the abovesaid counter claim has been dubbed together on the ground that issues to be decided and evidence to be led are materially and substantially the same. By way of the present application, defendant no. 1 & 2 are seeking framing of additional issues on the basis of the counter claim in the present matter. However, as it has already been noted that issues to be decided and evidence to he led in this suit and in counter claim are essentially the same, no separate framing of issues with respect to counter claim of defendant no. 1 & 2 appears to be necessary, moreso, when it has been specifically observed in order dated 24.02.2023 as below:

no. 1 is dismissed after trial, then automatically, the counter claimants shall be entitled to the reliefs claimed in the counter claim, without any further leading of evidence on their part. Therefore, essentially, it appears that issues to be framed and evidence to be led in the present counter claim shall be materially and substantially same as in the main suit hearing CS SCJ 1953/19 titled as Jagit Kaur Vs. Mukesh Berry.Hence, no fruitful purpose would be served by framing issues and recording evidence separately in the present counter claim and therefore, both the main suit bearing CS SCJ 1953/19 titled as Jagit Kaur Vs. Mukesh Berry and the present counter claim are directed to be clubbed together and tried together. The evidence led in main suit bearing CS SCJ 1953/19 titled as Jagit Kaur Vs. Mukesh Berry shall be read as part of the counter claim also. Accordingly, no further date is being given in the present counter claim".

10. Thus, in view of the above, framing of additional issues NO. 4, 5 & 6 is not required in the present suit.

11. Framing of additional issue no.7 is also not required in the present suit as the said additional issue no.7 is merely a subissue of issue no. 1 already framed vide order dated 15.05.2023. Whether the plaintiff has projected herself as a married lady or not, will be relevant for deciding issue no. 1 framed on 15.05.2023 and the evidence to be adduced in this respect is covered within the said issue no.1.

12. Hence, in view of the above discussion, there is no merit in the present application and framing of any additional issue is not required. Accordingly, application under Order 14 Rule 5 CPC of defendant no. 1 "& 2 stands dismissed.”

38. The learned Trial Court observed that the issue no. 4 framed on 15th May 2023 is identical to the additional issue no. 1 sought to be framed by petitioners, since both issues pertain to the same question of fact i.e., whether the respondent no.1 was actually married to Late Sh. Rakesh Kumar Berry or not.

39. Pertaining to the additional issues no. 2 and 3 sought to be framed by petitioners i.e., surviving member certificate of the respondent no.1 or documents signed by the deceased produced by the respondent no.1 along with the plaint, the learned Trial Court held that the said issues are separate cause of action that cannot be adjudicated in the present matter. Therefore, the learned Trial Court held that framing of additional issues no. 2 and 3 is not required in the present suit.

40. With respect to additional issues no. 4, 5 & 6 sought to be framed by the petitioners pertaining to the counter claims, it was observed by the learned Trial Court, that vide order dated 24th February 2023, the trial of the present suit as well as the Counter-Claim bearing no. 1324/21 has been clubbed together since the issues to be decided and evidence to be led are materially and substantially the same. Therefore, the learned Trial Court held that no separate framing of issues with respect to counter-claim of petitioners are required.

41. With respect to additional issue no. 7 i.e., whether the respondent NO. 1 has projected herself as a married lady or not, sought to be framed by the petitioner, the learned Trial Court observed that the said issue is not required to be framed as an additional issue since, it is merely a sub-issue of issue NO. 1 already framed vide order dated 15th May 2023. Hence, the additional issue no. 7 will not be relevant for deciding issue no. l framed by the learned Trial Court and the evidence to be adduced in this regard, is covered within the said issue no.1.

42. Now adverting to the adjudicating of the instant petition.

43. The learned Trial Court rightly held that additional issue no.1 sought to be framed by the petitioner i.e., whether the respondent no. 1 was legally wedded wife of the deceased Late Sh. Rakesh Berry on 10th December, 1988 according to Hindu Rites and Ceremony was identical to issue no. 4 already framed vide order dated 15th May 2023 i.e., Whether late Mr. Rakesh Kumar Berry never married during his lifetime and expired issueless. Accordingly, this Court is of the view that the additional issue sought to be framed is similar to issue already framed by this Court and both pertains to whether the respondent no. 1 is the wife of the deceased Mr. Rakesh Kumar Berry. Accordingly, this Court is of the view that the additional issue no.1 sought to be framed by the petitioners is similar to issue no. 4 already framed by this Court.

44. With respect to additional issues no. 2 and 3 sought to be framed by the petitioners i.e., whether Surviving Member Certificate NO. 90660000053235 was issued after following due process and whether signature of Late Shri Rakesh Kumar Berry was forged on document annexed as Annexure-A[4] along with plaint by plaintiff? If yes, then by whom, respectively, the learned Trial Court rightly held that the aforesaid issues have a separate cause of action which cannot be adjudicated in the present matter. Since, the dispute between the parties is with respect to the declaration of legal heir of the deceased.

45. Accordingly, this Court is of view that the learned Trial Court has rightly held that the since, the issues regarding the Succession Certificate is ancillary to the disputes in the said Civil Suit, no issues can be framed regarding the same.

46. With respect to additional issues 4, 5, and 6 sought to be framed by the petitioners i.e., whether counter-claimants/defendants are entitled for decree of declaration as per prayer clause A of counter claim, whether counter-claimants/defendants are entitled for decree of mandatory injunction as per prayer clause B of counter claim and whether counter claimants/defendants are entitled for decree of permanent injunction as per prayer clause C of counter claim respectively, the learned Trial Court rightly held that since as per order dated 24th February 2023, the trial of the present suit and the counter-claim bearing no. 1324/21 has been clubbed together, the issues to be decided and evidence to be led are materially and substantially the same, hence no separate framing of issues relating to counter-claim is necessary.

47. This Court is of the view that with respect to additional issue no. 7 sought to be framed by the petitioners i.e., whether plaintiff has represented herself as an unmarried lady to the public at large in public domain documents, the learned Trial Court rightly held that the said issue is merely a sub-issue of issue 1 already framed vide order dated 15th May 2023 i.e., whether the plaintiff is entitled to decree of declaration that the plaintiff is the only class-I legal heir of deceased Dr. Rakesh Kumar Berry S/o late Sit. Ram Lal Berry, since both pertains to whether the respondent no.1 is a legal heir of the deceased Rakesh Berry. Accordingly, the learned Trial Court rightly held that additional issue no. 7 sought to framed by the petitioners is already covered under the ambit of issue no. 1 framed by the learned Trial Court.

48. In view of the aforesaid observations, this Court is of the view that the learned Trial Court has rightly framed issues in the Civil Suit, covering all the key point of disputes between the parties. The learned Trial Court rightly held that the issues put forth by the petitioners for additional framing of issues were mere duplication, thereby not relevant to the present matter.

49. Accordingly, it is held that the learned Trial Court has exercised its jurisdiction in accordance with the law and rightly dismissed the petitioner’s application.

50. In view of the aforesaid discussion, the impugned order dated 15th December 2023 passed by the learned Senior Civil Judge-cum-Rent Controller, South East, Saket Court in the Civil Suit bearing CS No. 1953/19 is upheld.

51. Accordingly, the instant petition along with the pending applications, stands dismissed.

52. The order to be uploaded on the website forthwith.