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HIGH COURT OF DELHI
Date of order : 30th November 2022
P.C AGRAWAL ..... Plaintiff
Through: Mr. Jatin Sehgal, Mr. Shivashish Dwivedi and Mr. Yashi Bajpai, Advs.
Through: Mr. T.V. George, Adv. for R-2
CHANDRA DHARI SINGH, J (Oral)
I.A. No.11151/2019-Under Order XIV Rule 5, CPC
ORDER
1. The instant application has been filed by the Defendant No. 2 under Order XIV Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) seeking amendment of the issues framed in the captioned civil suit.
2. By way of this application, the Defendant No.2 prays before this Court for the framing of the following as additional issues in the captioned suit: “a. Whether the alleged Agreement to Sell dated 27.12.2005 between defendant no.1 to 3 in favour of defendant no.4 is a forged document. b. Whether the signature of defendant no.1, 2 and 3 in the alleged agreement to sell dated 27.12.2005 are forged signature. c. Whether there is any privity of contract between the plaintiffs and defendants no.1 to 3.”
3. Learned counsel appearing on behalf of the Defendant No.2 in support of the instant application has submitted that as the Plaintiff claims that Defendants No.1 to 3 have entered into an agreement to sell with Defendant No.4 on 27th December 2005 in favour of the Defendant No. 4 and on the basis of this agreement to sell, the Defendant No.4 has entered into an agreement to sell the suit property to the Plaintiff on 16th July 2008 thus the question as to whether such an alleged Agreement to Sell dated 27th December 2005 is a forged document or genuine document becomes necessary.
4. Praying for the dismissal of the instant application, learned counsel appearing on behalf of the plaintiff has submitted that the present application is highly belated as the issues in the captioned suit were framed way back in the year 2016 and whereas, the present application has been filed in the year 2019 and no reason whatsoever has been given for this delay.
5. It is vehemently submitted that such an application is to delay the trial as the evidence of the Plaintiff has already been led and the matter has been kept pending for his cross-examination. It is also argued on behalf of the Plaintiff that there is no material on the record to enable the framing of the proposed issues which is an essential requirement in terms of Order XIV Rule 3 of the CPC.
6. Heard learned counsel for the parties and perused the record of the captioned suit including the instant application filed under Order XIV Rule 5 of the CPC.
7. In my opinion, such an application after deep slumber must be dealt with strictly as no doubt procedure is handmaid to justice and it is the duty of the Court to arrive at just conclusions to uphold genuine claims but then it becomes equally important that an indirect attempt to delay the conclusion of trial or rather impede it is not allowed under the garb of vindication of substantive justice.
8. A brief background of the captioned civil suit is necessary for the disposal of the instant application.
9. The Plaintiff claims that the Defendant No.4 had purchased a property bearing No. E-929, Chittaranjan Park, New Delhi (hereinafter referred to as ‘suit property’) from the Defendants No. 1 to 3 vide an agreement to sell dated 27th December 2012 and on the strength of this agreement to sell, the Defendant No.4 had sold the suit property to the Plaintiff for a total sale consideration of Rs. 3,18,00,000/- (Rupees Three Crores Eighteen Lakhs Only) vide an Agreement to Sell dated 16th July 2008. The plaintiff claims to have paid Rs. 55,00,000/- to the Defendant No.4 and the remaining amount was to be paid at the time of handing over the vacant and physical possession of the suit property, on or before 31st July 2009.
10. It is the Plaintiff’s case that he has been repeatedly asking the Defendant No.4 to deliver the vacant and peaceful possession of the suit property and execute the relevant sale deed in favour of the Plaintiff, but all the requests of the Plaintiff have fallen onto deaf ears as the Defendant No.4 has been delaying the completion of the agreement to sell. Subsequently, it was transpired that the Defendants No.1 to 3 have still not transferred the suit property to the Defendant No. 4 even though the Defendant No. 4 has paid a sum of Rs. 1,35,00,000/- out of the total sale consideration of Rs. 1,50,00,000/- to the Defendants No. 1 to 3.
11. Aggrieved with the non-performance of the contract, the Plaintiff has approached this Court seeking specific performance of the agreement to sell dated 27th December 2005 and perpetual injunction qua the suit property.
12. The suit was instituted in the year 2012, and vide order dated 9th May 2016, the following issues were framed for consideration: “(i) Whether the plaintiff is entitled to specific performance of the agreement-to-sell dated 16.07.2008 with respect to the property E-929, Chittranjan Park, New Delhi? OPP.
(ii) Who is guilty of breach of contract, whether the plaintiff or the defendant No.4? Onus put on the parties.
(iii) Whether the plaintiff has always been and continues and willing to perform his part of the contract/agreement-to-sell? OPP.
(iv) Relief.”
13. A perusal of the record of the civil suit throws light on the following events as well: a) Vide order dated 12th March 2014, the right of the Defendant No.2 to file the written statement was foreclosed; b) Vide order dated 19th January 2016, the right of the Defendant No.2 to conduct admission & denial of the documents was also closed and; c) Vide order dated 9th May 2016, the Co-ordinate Bench of this Court had made the following observations which are necessary for the disposal of the instant application: “Defendant nos. l and 3are the original owners of the suit property and they have already sold the same to the wife of the defendant no.4 and, therefore, defendant nos. l and 3have no longer any existing interest in the suit and nor are they interested to contest the suit. Accordingly, defendant nos. l and 3 need not appear in this suit but in case any relief is specifically sought against these defendants except the relief of specific performance against the defendant no.4, at that stage on notices being issued to them on behalf of the plaintiff, defendant nos 1 and 3 would then be required to appear.”
14. At this stage, it is necessary to reproduce Rule 1, 3 and 5 to Order XIV of the CPC:
15. In Makhan Lal Bangal v. Manas Bhunia, (2001) 2 SCC 652, the Hon’ble Supreme Court while dealing with Order XIV Rule 5 made the following pertinent observations: "19…The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of order XIV of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the Court to read the plaint/petition and the Written Statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material proposition of fact or law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the Court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the Court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The Judgment, then proceeding issues-wise would be able to tell precisely how the dispute was decided".
16. The object of framing of issues is to direct the attention of the parties to the principal questions on which they are at variance, as also to bring such questions clearly before the Court, so that the Court may know which question needs to be determined to decide the case. It also ensures that no irrelevant evidence is led before the Court which unduly delays the trial and prevents it from reaching a logical end as otherwise, if proper issues are not framed the trial can go haywire and can lead to gross wastage of the precious time of the Court.
17. In my opinion, the present application is a textbook case of misuse of the process of law not only to derail the logical culmination of the trial but to ensure that the trial is delayed as far it can be without enabling the Court to adjudicate upon the real controversy between the parties. This Court says so for the following reasons: a) Vide order dated 9th May 2016, the Co-ordinate Bench of this Court had categorically stated that the Defendants No. 1 to 3 have no interest in the present suit as the real controversy is between the Defendant No. 4 and the Plaintiff and despite that the Defendant No. 2, who had been proceeded ex part, had the courage in the face of the order passed by the Coordinate Bench of this Court to file such an application. b) The Defendant No.2 who did not care to even file the written statements has suddenly woken up from a deep slumber of 3.[5] years to file this application.
18. Having gone through the application carefully, I do not see that even an attempt has been made by the Defendant No.2 to explain the delay in the filing of the instant application.
19. The Defendant No. 2 has merely quoted certain paragraphs from the written statement of the Defendant No. 3 and has sheerly failed to bring forth any material on record to substantiate his claim of forgery. Even otherwise, Rule 3 inter alia requires allegations made on oath by the parties so as to be considered as a material from which the Court may frame an issue which has also not been complied with in the instant case as the Defendant No. 2 has merely relied on the statements made on oath by the Defendant No. 3 but has not made any statement on oath himself.
20. Accordingly, the instant application being devoid of any merit is dismissed. CS(OS) 196/2012 Page 10 of List the matter before the Joint Registrar for completion of pleadings on 10th January, 2023.
JUDGE NOVEMBER 30, 2022 Aj/mg Click here to check corrigendum, if any