Present: Mr.Ashwani Kumar Chopra Senior Advocate with Vs. Jagdeep Singh Virk and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1127587
CourtPunjab and Haryana High Court
Decided OnFeb-10-2014
AppellantPresent: Mr.Ashwani Kumar Chopra Senior Advocate with
RespondentJagdeep Singh Virk and ors.
Excerpt:
cr no.1421 of 2011 1 in the high court of punjab and haryana at chandigarh civil revision no.1421 of 2011 date of decision:10. 2.2014 surender mann ......petitioner versus jagdeep singh virk & ors. .....respondents coram: hon'ble mr. justice mehinder singh sullar. present: mr.ashwani kumar chopra, senior advocate with s/shri sumeet goel & gursher singh bhandel, advocates for the petitioner. mr.v.k.sachdeva, advocate for respondent nos.1, 10 & 11. nemo for the remaining respondents. mehinder singh sullar, j.(oral) the epitome of the facts and material, culminating in the commencement, relevant for deciding the instant revision petition and emanating from the record, is that, initially, petitioner-plaintiff surender mann son of shamsher singh (for brevity “the plaintiff”.), has instituted the civil suit (annexure p5) on 5.7.2006, for a decree of permanent/mandatory injunction, restraining respondents-defendants jagdeep singh virk son of sardar amir singh virk & others (for short “the defendants”.), from demolishing any part and to restore already demolished building of randhir theatre in dispute in its original shape. the defendants contested the claim of plaintiff, filed the written statement (annexure p6), stoutly denied all the allegations contained in the plaint and prayed for dismissal of the suit.2. having completed all the codal formalities, ultimately, the case arvind kumar sharma 2014.02.18 18:21 i attest to the accuracy and integrity of this document chandigarh cr no.1421 of 2011 2 was listed for rebuttal evidence and arguments. thereafter, the plaintiff moved an application (annexure p2) to frame additional issue, under order 14 rule 5 cpc. the defendants refuted the prayer of plaintiff, filed the replies (annexures p3 and p4), strongly denied all the allegations contained in the application and prayed for its dismissal.3. taking into consideration the facts & entire material on record, the trial court dismissed the pointed application (annexure p2), by way of impugned order dated 22.2.2011 (annexure p1).4. aggrieved thereby, the petitioner-plaintiff has preferred the present petition, invoking the superintendence jurisdiction of this court under article 227 of the constitution of india.5. after hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant revision petition in this respect.6. ex facie, the argument of learned counsel that since the additional issue, sought to be framed, was very much essential to effectively decide the suit, so, the trial court committed the legal mistake to dismiss the application of plaintiff under order 14 rule 5 cpc, is not only devoid of merit but misplaced as well.7. as is evident from the record that the plaintiff has filed the suit (annexure p5) for a decree of permanent/mandatory injunction against the defendants in the manner depicted here-in-above. having framed the following issues, arising out of pleadings of the parties, the trial court slated the case for evidence of plaintiff, vide order dated 9.8.2006 (annexure p7):- arvind kumar sharma 2014.02.18 18:21 i attest to the accuracy and integrity of this document chandigarh cr no.1421 of 2011 3 1. whether the plaintiff is entitled to a decree for permanent injunction restraining the defendant no.1, 6 to 10 from demolishing any part of randhir cinema situated in old kunjpura road, karnal ?.opp2 whether the plaintiff is entitled to a decree for mandatory injunction directing the defendants no.1, 6 to 10 to restore the building of randhir theatre in original shape and condition and to refit the furniture etc.?. opp3 whether the suit of the plaintiff is not maintainable?.opd4 whether the present suit is bad for mis-joinder and non-joinder of necessary parties?.opd5 relief.8. as soon as, the case was adjourned for rebuttal evidence and arguments, in the meantime, the plaintiff moved the application (annexure p2) to frame additional issue under order 14 rule 5 cpc (after about five years of the institution of the suit). he has sought to frame additional issue to the effect that “whether the plaintiff and defendant no.7 constituted joint hindu family and the share of defendant no.7 in the land underneath the randhir cinema was purchased from the income of the joint hindu family property”.. to me, the present controversy involved, can effectively be decided under already framed exhaustive issue nos.1 and 2. the plaintiff would only succeed in the main suit for permanent/mandatory injunction, in case, he is able to prove that when, how and in what manner, he became owner of the property in litigation and not otherwise. moreover, the parties, having deeply known each other's cases, have brought on record the oral as well as documentary evidence, in order to substantiate their respective stands pleaded in their pleadings. thus, the plaintiff appears to have filed the application (annexure p2) to frame additional issue at this belated stage in order to delay the disposal of the main old suit.9. therefore, the trial court has correctly dismissed the application to frame the indicated additional issue, by virtue of impugned order (annexure p1), has examined the matter in right perspective and arvind kumar sharma 2014.02.18 18:21 i attest to the accuracy and integrity of this document chandigarh cr no.1421 of 2011 4 recorded the cogent grounds in this regard. such order, containing valid reasons, cannot possibly be set aside, in the exercise of superintendence power of this court under article 227 of the constitution of india, unless and until, the same is illegal, perverse and without jurisdiction. since no such patent illegality or legal infirmity has been pointed out by the learned counsel for petitioner, so, the impugned order (annexure p1) deserves to be and is hereby maintained in the obtaining circumstances of the case.10. no other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.11. in the light of aforesaid reasons, as there is no merit, therefore, the instant revision petition filed by the petitioner-plaintiff is hereby dismissed as such. sd/- (mehinder singh sullar) judge 10.2.2014 as whether to be referred to reporter ?. yes/no arvind kumar sharma 2014.02.18 18:21 i attest to the accuracy and integrity of this document chandigarh
Judgment:

CR No.1421 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1421 of 2011 Date of Decision:

10. 2.2014 Surender Mann ......Petitioner Versus Jagdeep Singh Virk & Ors. .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Ashwani Kumar Chopra, Senior Advocate with S/Shri Sumeet Goel & Gursher Singh Bhandel, Advocates for the petitioner. Mr.V.K.Sachdeva, Advocate for respondent Nos.1, 10 & 11. Nemo for the remaining respondents. MEHINDER SINGH SULLAR, J.

(Oral) The epitome of the facts and material, culminating in the commencement, relevant for deciding the instant revision petition and emanating from the record, is that, initially, petitioner-plaintiff Surender Mann son of Shamsher Singh (for brevity “the plaintiff”.), has instituted the civil suit (Annexure P5) on 5.7.2006, for a decree of permanent/mandatory injunction, restraining respondents-defendants Jagdeep Singh Virk son of Sardar Amir Singh Virk & others (for short “the defendants”.), from demolishing any part and to restore already demolished building of Randhir Theatre in dispute in its original shape. The defendants contested the claim of plaintiff, filed the written statement (Annexure P6), stoutly denied all the allegations contained in the plaint and prayed for dismissal of the suit.

2. Having completed all the codal formalities, ultimately, the case Arvind Kumar Sharma 2014.02.18 18:21 I attest to the accuracy and integrity of this document Chandigarh CR No.1421 of 2011 2 was listed for rebuttal evidence and arguments. Thereafter, the plaintiff moved an application (Annexure P2) to frame additional issue, under Order 14 Rule 5 CPC. The defendants refuted the prayer of plaintiff, filed the replies (Annexures P3 and P4), strongly denied all the allegations contained in the application and prayed for its dismissal.

3. Taking into consideration the facts & entire material on record, the trial Court dismissed the pointed application (Annexure P2), by way of impugned order dated 22.2.2011 (Annexure P1).

4. Aggrieved thereby, the petitioner-plaintiff has preferred the present petition, invoking the superintendence jurisdiction of this Court under Article 227 of the Constitution of India.

5. After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant revision petition in this respect.

6. Ex facie, the argument of learned counsel that since the additional issue, sought to be framed, was very much essential to effectively decide the suit, so, the trial Court committed the legal mistake to dismiss the application of plaintiff under Order 14 Rule 5 CPC, is not only devoid of merit but misplaced as well.

7. As is evident from the record that the plaintiff has filed the suit (Annexure P5) for a decree of permanent/mandatory injunction against the defendants in the manner depicted here-in-above. Having framed the following issues, arising out of pleadings of the parties, the trial Court slated the case for evidence of plaintiff, vide order dated 9.8.2006 (Annexure P7):- Arvind Kumar Sharma 2014.02.18 18:21 I attest to the accuracy and integrity of this document Chandigarh CR No.1421 of 2011 3 1. Whether the plaintiff is entitled to a decree for permanent injunction restraining the defendant no.1, 6 to 10 from demolishing any part of Randhir Cinema situated in Old Kunjpura Road, Karnal ?.OPP2 Whether the plaintiff is entitled to a decree for mandatory injunction directing the defendants no.1, 6 to 10 to restore the building of Randhir Theatre in original shape and condition and to refit the furniture etc.?. OPP3 Whether the suit of the plaintiff is not maintainable?.OPD4 Whether the present suit is bad for mis-joinder and non-joinder of necessary parties?.OPD5 Relief.

8. As soon as, the case was adjourned for rebuttal evidence and arguments, in the meantime, the plaintiff moved the application (Annexure P2) to frame additional issue under Order 14 Rule 5 CPC (after about five years of the institution of the suit). He has sought to frame additional issue to the effect that “whether the plaintiff and defendant No.7 constituted joint Hindu family and the share of defendant No.7 in the land underneath the Randhir Cinema was purchased from the income of the joint Hindu family property”.. To me, the present controversy involved, can effectively be decided under already framed exhaustive issue Nos.1 and 2. The plaintiff would only succeed in the main suit for permanent/mandatory injunction, in case, he is able to prove that when, how and in what manner, he became owner of the property in litigation and not otherwise. Moreover, the parties, having deeply known each other's cases, have brought on record the oral as well as documentary evidence, in order to substantiate their respective stands pleaded in their pleadings. Thus, the plaintiff appears to have filed the application (Annexure P2) to frame additional issue at this belated stage in order to delay the disposal of the main old suit.

9. Therefore, the trial Court has correctly dismissed the application to frame the indicated additional issue, by virtue of impugned order (Annexure P1), has examined the matter in right perspective and Arvind Kumar Sharma 2014.02.18 18:21 I attest to the accuracy and integrity of this document Chandigarh CR No.1421 of 2011 4 recorded the cogent grounds in this regard. Such order, containing valid reasons, cannot possibly be set aside, in the exercise of superintendence power of this Court under Article 227 of the Constitution of India, unless and until, the same is illegal, perverse and without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for petitioner, so, the impugned order (Annexure P1) deserves to be and is hereby maintained in the obtaining circumstances of the case.

10. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

11. In the light of aforesaid reasons, as there is no merit, therefore, the instant revision petition filed by the petitioner-plaintiff is hereby dismissed as such. Sd/- (Mehinder Singh Sullar) Judge 10.2.2014 AS Whether to be referred to reporter ?. Yes/No Arvind Kumar Sharma 2014.02.18 18:21 I attest to the accuracy and integrity of this document Chandigarh