Page No.# 1/4 vs Madhab Ch Gupta (Kanu)
2022 Latest Caselaw 3043 Gua

                                                                   Page No.# 1/4

GAHC010065692022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : CRP(IO)/67/2022

            RAMESH KUMAR AGARWALLA AND ANR
            S/O SRI RAMAUTAR AGARWALLA, R/O WARD NO. 4 (OLD), 2 (NEW),
            DERGAON TOWN, NEAR ASTC BUS STATION, P.O. AND P.S.-DERGAON,
            DIST-GOLAGHAT, ASSAM, PIN-785614

            2: LOKESH AGARWALLA
             S/O SRI RAMAUTAR AGARWALLA
             R/O WARD NO. 4 (OLD)
             2 (NEW)
             DERGAON TOWN
             NEAR ASTC BUS STATION
             P.O. AND P.S.-DERGAON
             DIST-GOLAGHAT
            ASSAM
             PIN-78561

            VERSUS

            MADHAB CH GUPTA (KANU)
            S/O LATE BUDHIRAM GUPTA @ KANU, P/R/O WARD NO. 10, DERGAON
            TOWN, NEAR ASTC BUS STAION, P.O. AND P.S.-DERGAON, DIST-
            GOLAGAHT, ASSAM, PIN-785614, AT P/R/A ASSAM COMMANDO
            BATTALION CANTEEN, MANDAKATA, NORTH GUWAHATI



Advocate for the Petitioner   : MR. R L YADAV

Advocate for the Respondent : MS. P BHATTACHARYA
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                                     :: BEFORE ::
                    HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                     O R D E R

17.08.2022

Heard the learned counsel Mr. R.L. Yadav as well as Ms. K. Yadav appearing for the petitioners. Also heard Ms. P. Bhattacharyya, learned counsel appearing for the respondent.

This is an application under Article 227 of the Constitution of India read with Section 151 of the Code of Civil Procedure whereby the order dated 16.12.2021 passed by the Civil Judge, Golaghat in respect of Petition No.445/2021 filed in T.S. No.05/2016 is under challenge.

The two petitioners filed a suit against the respondent praying for a specific performance of a contract. It may be stated that the petitioners had an agreement to purchase a plot of land, which already had some tenants, from the respondent. There was an agreement between the parties that the respondent would have the land vacated and if the respondent fails to do that, he shall return the advance money of Rs.10,000,00/- to the petitioners.

Upon the pleadings of the parties, the trial court framed the following issues:

1. Whether the suit is barred?

2. Whether the suit is bad for non-joinder of necessary parties?

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3. Whether the defendant has a sellable right over the suit land?

4. Whether in terms of clauses 3, 4, 5, 8 and 10 of the concerned agreement dated 28.02.2013, the specific performance of the contract is necessary?

5. Whether, on facts, it is practicable for the defendant to deliver vacant possession of the suit land to the plaintiffs?

6. To what relief/relives if any the plaintiffs are entitled?

When the case before the court below reached the stage of argument, the petitioners filed the application before the court praying for recasting two issues i.e. the issue nos.3 and 5.

It is an admitted fact that the respondent has a sellable right over the suit land. There is no dispute about it. Since admitted facts need not be proved, the petitioners prayed for striking out that issue.

For the issue no.5, the petitioners suggested that instead of an issue as to whether it practicable for the respondent to deliver vacant possession of the land to the petitioners, the said issue should be recasted and whether delivery of possession is a precondition for sale of the suit land.

Under Order XIV Rule 5 of the Code of Civil Procedure, the trial court has the power to amend or strike out issue at any time before delivery of judgment. A court frames issues on the basis of the pleadings of the parties. In the written statement, it has been pleaded by the respondent (defendant before the trial court) that eviction of the tenants from the suit property was a condition precedent for furtherance of the execution Page No.# 4/4

of the final deed of conveyance.

The trial court disagreed with the petitioners.

I have gone through the impugned order.

It appears that the learned trial court failed to apply judicial mind while passing the impugned order. When there is a pleading in the written statement that eviction of the tenants of the suit property was the condition precedent for furtherance of the execution of the final deed of conveyance, there should have been an issue to that effect.

Under the aforesaid premised reasons, this Court is of the opinion that the impugned order dated 16.12.2021 whereby the Petition No.445/2021 was rejected by the trial court is bad in law.

The issue no.3 shall be struck off as because admitted facts need not be proved. Similarly, issue no.5 shall be recasted as suggested by the petitioners.

With the aforesaid direction the revision petition is allowed and disposed of accordingly.

JUDGE

Comparing Assistant