Pearey Lal vs Chiranji Lal Ramji Dass
1999 Latest Caselaw 885 Del

ORDER

Dr. M.K. Sharma, J.

1. The present revision petition is directed against the order dated 9.3.1999 passed by the Civil Judge, Delhi in Suit No. 128/1993 dismissing the application filed by the petitioner/defendant under Order 14, Rule 5 praying for amendment of the issues framed in the suit and for placing the burden of proof correctly on the concerned parties. The respondent herein as plaintiff filed a suit seeking for a decree for mandatory injunction directing the petitioner/defendant to remove himself and his family members and belongings from the premises namely - first floor of 5579, Naya Bazzar, Delhi and for handing over the possession of the aforesaid premises to the present respondent. The petitioner herein filed the written statement and on the basis of the pleadings of the parties issues were framed in the suit in the year 1996. Immediately thereafter an application was filed by the petitioner under Order 14, Rule 5 seeking for amendment of the issues and for placing the burden of proof correctly upon the concerned parties. Upon rejection of the said application the present petition is preferred.

2. I have heard the learned counsel appearing for the petitioner as also the counsel appearing for the respondent. I have also perused the relevant records and given my thoughtful consideration to the contentions of the counsel appearing for the parties.

3. It is contended by the petitioner that the issues No. 1 & 2 have not been correctly framed and onus to prove the said issues has also been incorrectly placed on the defendant. The aforesaid issues No. 1 & 2 were framed as hereunder :-

(1) Whether the present suit in the form of mandatory injunction is not maintainable ? OPD

(2) Whether the plaintiff has no locus standing to file the present suit as he is neither the landlord nor owner of the suit property ? OPD

4. The petitioner/defendant has taken up a plea in his written statement that the suit for mandatory injunction and permanent injunction is not maintainable in law. In view of the aforesaid plea taken up in the written statement issue No. 1 was framed by the court. Since the aforesaid objection is raised by the defendant in his written statement, it is for him to prove and establish that such a suit as filed by the plaintiffs is not maintainable. In my considered opinion the said issue is correctly framed and the onus is correctly placed on the defendant.

5. So far as Issue No. 2 is concerned the defendant has taken up a plea in paragraph 6 of the written statement that the plaintiffs are neither the landlords nor the owners of the suit property and therefore, they have no locus standing to file and maintain the present suit. In view of taking up of the aforesaid plea by the defendant in the written statement the aforesaid issue was framed and I so not find any reason to amend the said issue. In my considered opinion it is for the defendant to prove that the plaintiff has no locus standi to file the present suit and therefore, onus of proving the said issue has been correctly placed on the defendant.

6. By the aforesaid application filed by the petitioner under Order 14 Rule 5 CPC the petitioner also sought for framing of additional issues as issues No. 9 to 16. I have considered the said issues as sought to be framed by the petitioner. Issues No. 9, 11, 12 & 16 are in the following manner :

(9) Whether the suit is barred under Section 50 of the Delh Rent Control Act ? OPD

(11) Whether the plaint is signed and verified by the competent person ? OPD

The aforesaid issues arise for consideration out of the pleadings of the parties and accordingly they are framed as issues No. 9 & 10 respectively, placing the onus to prove the said issues as shown above.

So far as proposed issues No. 12 & 16 are concerned, in my considered opinion the said issues also arise for consideration in a re-framed manner as follows :-

(12) Whether the suit is bad for non - joinder of necessary parties and is also bad for misjoinder of plaintiff No. 1 as party ? OPD

(16) Whether the suit is barred by limitation ? OPD

The aforesaid issues are framed as issues No. 11 & 12 respectively and onus of proving the said issues is placed on the defendant.

7. The petitioner has also prayed for framing of issues No. 10, 13, 14 & 15 as proposed in the application. In my considered opinion the proposed issue No. 10 to the effect "Whether the defendant was terminated in 1986" is wrongly framed and therefore, no such issue could be framed. So far issues No. 13, 14 & 15 are concerned they have been pleaded in paragraph 6 of the written statement for the purpose of indicating that the plaintiffs have no legal right/locus standing to file and maintain the present suit because the plaintiffs are not the owners of the property in question. To that extent an issue has already been framed as issue No. 2 and evidence in respect of the same could be led under Issue No. 2. In my considered opinion the said issues are covered by issue No. 2 already framed for while leading evidence for issue No. 2, the petitioner shall have occasion to lead evidence in respect of the said proposed issues also and therefore, no additional issue is required to be framed in the manner sought for. Prayer for framing these issues is declined.

8. The issues are accordingly re-framed and additional issues are framed which arise for consideration in the present suit placing onus on the concerned parties. The petition stands disposed of in terms of the aforesaid order.