Narender Kumar Aron vs Shanta Kumari Amrit
2013 Latest Caselaw 759 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Date of Decision : 15.02.2013

+     CM(M) 809/2012 and C.M.No.12082/2012 (stay)
      NARENDER KUMAR ARON
                                                               ..... Petitioner
                         Through: Mr.R.K.Mittal, Advocate.

                         versus

      SHANTA KUMARI AMRIT
                                                             ..... Respondent
                         Through: Mr.Madhur Sapra, Advocate.

      CORAM:
      HON'BLE MS. JUSTICE PRATIBHA RANI

%
PRATIBHA RANI, J. (ORAL)

1. This petition has been filed by the petitioner under Article 227 of the Constitution of India praying for setting aside the order dated 08.02.2012 passed by the learned Addl. Rent Controller (West), Delhi in Suit No.992/2006 whereby the application under Order 14 Rule 5 read with Section 151 CPC filed by the respondent/plaintiff was allowed and additional issues were framed.

2. The petitioner before this Court was impleaded as defendant No.2 in civil suit No.297/2000 (old), 992/2006 (new). The suit was initially filed by Smt.Shanta Kumari Amrit, w/o Shri Ishwar Dass Amrit and Shri Ishwar

Dass Amrit, son of Shri Bhag Mal Amrit, impleading Shri Hari Saran Aron, son of late Shri Ishwar Saran Aron as defendant No.1 and the present petitioner Shri Narender Kumar Aron son of late Shri Raghubir Saran Aron as defendant No.2. It is informed by learned counsel for the petitioner that defendant No.1 has been proceeded ex parte in the above-noted suit.

3. I have considered the submissions made by learned counsel for the petitioner. The question of framing issue arises when any material proposition of fact or law affirmed by one party has been denied by the other party. It is the duty of the Trial Court to settle all necessary issues whether of fact or of law which are arising out of the pleadings of the parties. The purpose behind this is to determine the material points in controversy and that they are decided so as to give finality to the litigation.

4. In Makhan Lal Bangal v. Manas Bhunia AIR 2001 SC 490 (496-

497), 2001 (2) SCC 652, the Apex Court, while dealing with the importance and objective of the stage of framing of issues, observed as under :-

"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."

It was further observed:-

"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 issue-wise would be able to tell precisely how the dispute was decided."

5. The grievance of the petitioner is with respect to issue No.4A framed by the learned Trial Court on 08.02.2012 which is extracted as under:-

"4A. Whether Late Shri Ishwar Saran Aron was competent to execute the Will dated 9th May, 1994 in respect of the suit property, in view of execution of documents dated 5th February, 1987 executed by him in favour of the plaintiffs? OPD"

6. On behalf of the petitioner, it has been submitted that the onus to prove the execution of the Will dated 09.05.1994 in respect of the suit property has been wrongly put on the defendants for the reason that he has purchased this property on the basis of sale deed and it is not for him to discharge the onus regarding the competency of late Shri Ishwar Saran Aron. It was for the petitioner to prove his case on the basis of execution of various documents in their favour like Agreement to Sell, Receipt, General Power of Attorney, Affidavit and Will dated 05th February, 1987 executed by late Shri Ishwar Saran Aron.

7. Perusal of the impugned order shows that on the basis of pleadings of the parties, the issue framed in this case was issue No.4 which is as under:-

"4. Whether the plaintiff is entitled for Decree of declaration that Will dated 9th May, 1994 is forged, fabricated and illegal? OPP."

8. Thereafter, the plaintiff filed an application under Order 14 Rule 5 on

22.03.2010 praying for deletion of issue No.4. After considering the rival contentions of the parties, the learned Trial Court took note of the fact that defendants No.1 and 2 are cousins being represented by the same counsel. Learned Trial Court sought clarification from the defendants on 22.03.2010 that the alleged Will dated 09.05.1994 was not forming part of the record. Opportunity was given to the defendants to place on record the said Will which was not produced.

9. Defendant No.1 was proceeded ex parte on 28.03.2011. Defendant No.2 Narender Kumar Aron, who is petitioner before this Court, was examined under Order 10 CPC by the Trial Court on 06.05.2011 wherein he claimed to have seen the Will dated 09.05.1994, but stated that he did not ask defendant No.1 to supply the Will to him and that as and when he felt he could ask defendant No.1 to produce the Will.

10. The plaintiffs filed the suit for specific performance and declaration claiming their title on the basis of documents like Agreement to Sell, Receipt, General Power of Attorney, Affidavit and Will dated 05 th February, 1987. The plaintiffs' case is that once they have acquired the suit property from Shri Ishwar Saran Aron on the strength of above documents, no right, title or interest was vested in late Shri Ishwar Saran Aron, father of defendant No.1, to execute another Will dated 09.05.1994, on the strength of which defendant No.1 executed sale deed in favour of defendant No.2.

11. Since the entire defence of defendant No.2, who is cousin of defendant No.1, is based on his claim that he purchased the suit property from defendant No.1, who acquired his title on the strength of Will dated 09.05.1994 executed by his father, the onus has rightly been put on the defendants to prove as to whether late Shri Ishwar Saran Aron could execute

any Will dated 09.05.1994 in respect of the suit property after he had already executed documents like Agreement to Sell, Receipt, General Power of Attorney, Affidavit and Will in favour of the plaintiffs on 05.02.1987.

12. The petitioner has invoked the power of this Court under Article 227 of Constitution of India. In normal circumstances, this power is exercised where there is want of jurisdiction, error of law or perverse findings of the Trial Court. This Court would not substitute its opinion to interfere with the finding of the Trial Court if there is no infirmity or perversity. This Court will interfere only when error of law is apparent on the face of record which has resulted in gross injustice.

13. While disposing of the application under Order 14 Rule 5 CPC, learned Trial Court has rightly placed the onus to prove issue No.4A on the defendants. It is for the defendants to discharge the onus as to how in respect of the property already disposed of by Late Sh.Ishwar Saran Aron, he could execute another Will in 1994 on the strength of which his son i.e. defendant No.1 claimed title and how defendant No.2 could purchase the same without completing the chain of title documents.

14. Finding no illegality, infirmity or perversity in the impugned order, the present petition is dismissed.

PRATIBHA RANI, J

FEBRUARY 15, 2013 „dc‟