Prakash Road Lines (P) Ltd. vs New Assurance Co. Ltd. And Anr.
1992 Latest Caselaw 326 Del

JUDGMENT

P.N. Nag, J.

(1) This revision petition is directed against the order dated 12/10/1977 passed by Shri Z.S. Lohat, Sub-Judge Third Class, Delhi whereby certain issues were framed.

(2) The facts giving rise to this petition are that the plaintiffs-respondent filed a suit for recovery of Rs. 1,098.74. It appears that the Counsel for the plaintiffs filed a petition for substitution of the name of plaintiff No. 1which was allowed vide order dated 1.6.1976 by the trial Court. Consequently the plaintiffs filed the amended plaint on 6.7.1976 incorporating therein illegally paras 1, 6 and the verification. The amendment of paras 1, 6 and the verification was not allowed by the trial Court.

(3) The petitioner-defendant filed an application dated 15.4.1977 under Order 14 Rules 1, 2(a) & (b) and 5 and Section 151 of Code of Civil Procedure proposing certain issues to be framed.

(4) Vide impugned order dated 12.10.1977, the learned trial Court framed the following issues : "(1)Whether the suit is barred by time ? OPD.(2) Whether New India Insurance Co. is the legal representative &Successor of plaintiff No, 1? If not to what effect ? OPD.(3) Whether the plaint is duly signed by a properly authorized person ? OPP.(4) Whether the suit is bad for misjoinder of plaintiff ? If so, its effect ? OPD."

(5) Counsel for the petitioner-defendant submits that the trial Court ought to have framed one more issue, namely, "WHETHER the plaintiff has deleted and unauthorisedly added new facts in the amended plaint without the permission of the honourable Court ? If so to what effect ?"

Unfortunately, no such issue has been framed by the trial Court and hence thispetition.

(6) After hearing the learned Counsel for the petitioner, I am of the opinion that the trial Court should have framed the above mentioned proposed issue as the amended plaint could be filed only if it incorporates the amendment allowed by the trial Court. In case any amendment has not been allowed, the same cannot be incorporated in the plaint. In these circumstances, the petitioner is entitled to have the additional issue following framed : "WHETHER the plaintiff has deleted and unauthorisedly added new facts in the amended plaint without the permission of the honorable Court ? If so to what effect ?

(7) The impugned order of the trial Court is, therefore, modified to the extent that one more additional issue in the following terms is framed : "WHETHER the plaintiff has deleted and unauthorisedly added new facts in the amended plaint without the permission of the honorable Court ? If so to what effect ? OPD."

(8) Civil revision is disposed of in the above terms. In the facts and circumstances of this I make no order as to costs.

(9) Trial Court record be sent back immediately.

(10) Parties are directed to appear before the trial Court on 2 7/07/1992.