Judgment:
CR No.957 of 2014 :1: IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No.957 of 2014 Date of Decision : 10.02.2014 Balbir Singh Wasu ....Petitioner(s) Versus Mrs.Malvinder Kaur Wasu and others ....Respondent(s) CORAM: HON'BLE Mr.JUSTICE RAJIV NARAIN RAINA Present: Mr.J.S.Wasu, Advocate, for the petitioner(s).***** 1.
To be referred to the Reporters or not?.
2.
Whether the judgment should be reported in the Digest?.
***** RAJIV NARAIN RAINA, J.
Notice of motion.
Mr.Puneet Jindal, Advocate, who was watching the case, appears and accepts notice on behalf of the respondent and waives service on them.
The matter is taken up on board by consent for final disposal.
Heard at length.
In the present proceedings under article 227 of the Constitution of India, the order dated 14th October, 2013 passed by the learned Additional District Judge, Chandigarh is assailed.
The application filed by the petitioner, plaintiff in the suit, under order 14 rule 5 read with order 14 Kumar Paritosh 2014.02.19 10:18 I attest to the accuracy and integrity of this document CR No.957 of 2014 :2: rule 3(c) read with section 151 CPC for framing an additional issue has been rejected.
It is the case of the petitioner that the additional issue deserves to be framed as it goes to the root of the matter and requires adjudication.
The challenge laid originates from issue No.3 which was struck on 16th September, 2005 by the trial court which reads as follows : - “3.
Whether the exchange deed dated 30.07.1984 is illegal, null and void in view of the grounds taken in the plaint?.
OPP.”
.
The proposed issue has been re-phrased in the application for permission to re-strike the issue and has been framed as follows : - “Issue No.3: Whether the Exchange Deed dated 30.7.1984 is illegal, null and void, inter-alia, in the light of the fact that Malvinder Kaur had no ownership title in House No.1185, Sector 8-C, Chandigarh on 30.7.1984 since the ownership title of this house already stood transferred/conveyed by her to the Governor of Punjab way back on 14.7.1969?.
OPP”.
In the alternative, it is prayed that an additional issue be framed to the following effect : - “Issue No.9: Whether the Exchange Deed dated 30.7.1984 is void ab-initio as Malvinder Kaur had no ownership title in House No.1185, Sector 8-C, Chandgarh on 30.7.1984, since the ownership title of this house already stood transferred/conveyed by her to the Governor of Punjab way back on 14.7.1969?.
OPP.”
.
The dispute relates to the ownership title of House No.1185, Sector 8-C, Chandigarh in the context of an exchange deed dated 30th July, 1984 executed by MRS.Malvinder Kaur surrendering her right, title and interest to the aforesaid house in exchange of a portion of the property bearing House No.15, Sector 9-A, Chandigarh.
This exchange deed is Kumar Paritosh 2014.02.19 10:18 I attest to the accuracy and integrity of this document CR No.957 of 2014 :3: subject matter of a civil suit and a probate petition between the parties which cases have clubbed together by an order of the Supreme Court to be heard together since common evidence is involved.
The suit relating to the validity of the will of late Sardar Harnam Singh Wasu was filed prior in time to the probate petition which is alleged to have been filed as a counter blast to the civil suit.
The point in issue is that MRS.Malvinder Kaur had taken a loan against her said property in Sector 8, Chandigarh mortgaging it through a registered deed dated 14th July, 1969.
It is the say of the petitioner that though the existence of the mortgage deed was known to him but its contents were not, which came to his knowledge only when a certified copy of the mortgage deed was applied for and obtained in March, 2013 from where it came to light that in fact, MRS.Malvinder Kaur had transferred the title of House No.1185, Sector 8-C, Chandigarh to the Governor of Punjab vide Clause 2 (iii) of the mortgage deed dated 14th July, 1969 and as such on 30th July, 1984, on the date she executed the exchange deed with her father- in-law late Harnam Singh Wasu, she was not owner of House No.1185, Sector 8-C, Chandigarh on account of non-repayment of the loan to Government and therefore could not have exchanged the same in lieu of her request for share in Sector 9 house as a member of the Wasu family.
The contention advanced by the petitioner is that this turn of events would by itself remain a triable issue to be decided in the pending litigation and therefore this court is sought to be persuaded that the issue No 3 is either re-phrased or an additional issue struck as pressed.
It ex facie appears to this Court that the petitioner may not be wrong in his assertion that the question may go to the root of the matter pending in the lis and is an eminently triable issue, the findings on which Kumar Paritosh 2014.02.19 10:18 I attest to the accuracy and integrity of this document CR No.957 of 2014 :4: real controveRs.the parties would rest content only through the contested mode.
Besides, in a matter of this kind where valuable rights to property are asserted and refuted, it will alone secure the ends of justice that such an issue giving rise to a seriously debatable moot point should not be allowed to be examined threadbare by court on evidence.
The question of knowledge of contents of exchange deed are questions of fact to be determined at the trial.
No prejudice would be caused to the respondents if issue No.3 is re- phrased as suggested or an entirely a new issue is framed on the same theme as formulated through proposed issue No.9.
They are both in similar text and context, to achieve the same lawful purpose.
In view of this, the impugned order passed by the learned Additional District Judge, Chandigarh is not tenable.
For the foregoing reasons, this petition is allowed.
The impugned order is set aside.
It is left to the discretion of the learned Additional District Judge to either accept issue No.3 as re-phrased or in the alternative, to introduce issue No.9 as proposed.
The amendment is allowed.
The suit to proceed in accordance with law.
(RAJIV NARAIN RAINA) JUDGE February 10, 2014 Paritosh Kumar Kumar Paritosh 2014.02.19 10:18 I attest to the accuracy and integrity of this document