Smt. Indira Madani And Ors. vs Shri Hola Ram (Since Deceased) ...
2002 Latest Caselaw 533 Del

JUDGMENT

R.C. Jain, J.

1. This civil revision is directed against the order of the learned Additional District Judge, Delhi, dated 17th May, 2001 by which an application under Order 14 Rule 5 read with Section 151 CPC moved on behalf of the plaintiff-petitioner herein seeking recasting of the existing issues and framing of additional issues has been declined.

2. The relevant facts to be noted for the disposal of the civil revision are that a suit for dissolution of partnership and rendition of accounts filed by the plaintiff is pending disposal before the learned trial court. On the pleadings of the parties, on 10th August, 1994, the learned trial court framed the following issues:-

"(i) Whether the plaintiff is entitled to a decree of dissolution of partnership?

(ii) Whether the plaintiff is entitled to decree for rendition of account?

(iii) Whether the suit is not maintainable for the reasons stated in paras No. 1 to 3 of the preliminary objections of the written statement?

(iv) Whether the suit has been property valued for the court fee and jurisdiction, if not, what is the correct valuation for the purpose?

(v) Relief."

3. The parties have gone on trial on the aforesaid issues and the suit has reached its fag end and ripen for final disposal. The application has been declined mainly on the ground that the application was moved at a highly belated staged of the trial.

4. I have heard the learned counsel for the parties and have given my thoughtful consideration to their respective submissions. Although in the revision petition the petitioners has sought the recasting of the issues and framing of several additional issues but during the course of hearing the learned counsel for the petitioner has submitted that the petitioner is more concerned about framing of the following additional issue:

"Whether the tenancy rights of the plaintiff came to an end vide agreement dated 29.3.1977 without surrendering to the landlord?

5. This issue is based on mixed question of fact and law and in the opinion of this court is required to be framed because the tenancy of the suit premises is stated to be one of the assets of the partnership and has been described in the plaint and has been valued at Rs. 60,000/- in para 22 of the plaint. That being so the learned trial court would be called upon to answer the question as to what is the value of the said asset and what would be plaintiff's share, if any, therein. For that purpose it is necessary to return a finding if the rights of the plaintiff in the tenancy of the suit in the premises exist or got extinguished as was pleaded by the defendant and sought to be proved by means of evidence. For the just and effective adjudication of this controversy and to avoid multiplicity of the proceedings, it seems to be expedient in the interest of justice if additional issue to the above effect is cast and the parties go on trial on this issue as well. Accordingly the revision petition is allowed and the impugned order of the learned Additional district Judge, Delhi, dated 17th May, 2001 is hereby set aside. An additional issue "Whether the tenancy rights of the plaintiff came to an end vide agreement dated 29.3.1977 without surrendering to the landlords" is hereby framed. Learned counsel for the plaintiff states that whatever evidence is required to be produced on behalf of the plaintiff on the above framed additional issue, shall be led only on one day to be fixed by the learned trial court. This will be subject to the right of the defendant to lead evidence on the said issue.

The revision petition is accordingly disposed of. CM 2062/01 also stands disposed of.