Subhan Khan Vs. Lrs. of Late Pukhe Khan and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/766597
SubjectCivil
CourtRajasthan High Court
Decided OnJul-06-2009
Judge Gopal Krishan Vyas, J.
Reported inRLW2009(4)Raj2811
AppellantSubhan Khan
RespondentLrs. of Late Pukhe Khan and anr.
DispositionPetition dismissed
Cases ReferredDevaswom Managing Committee v. Thachudaya Kaimal
Excerpt:
- - thachudaya kaimal @manickan keralan (dead) by lrs, in which, as per learned counsel for the petitioner, it has been decided by the hon'ble apex court that right to enjoy the property even assuming that the order is correct, is a right only in personam and on demise the right ceases to exist.gopal krishan vyas, j.1. in this revision petition, the petitioner has prayed for quashing order dated 25.5.2009 whereby the learned trial court dismissed the application filed under order 14 rule 5, c.p.c., read with section 151, c.p.c.2. according to facts of the case, suit was filed by the petitioner plaintiff on 2.6.1989. on 21.3.2009, evidence of the defendants was closed and matter was fixed for final arguments. thereafter, an application was filed under order 14 rule 5, c.p.c, read with section 151, c.p.c by the petitioner-plaintiff for framing another issue which is said to be legal issue. learned counsel for the petitioner submits that application under order 14 rule 5, c.p.c. can be filed at any stage, therefore, the learned trial court committed error while dismissing the application filed by the petitioner under order 14 rule 5, c.p.c. on the ground that it has been filed at the final stage. in support of his argument, learned counsel for the petitioner invited attention of the court towards the judgment reported in (1996) 2 scc 680, koodalmanickam in devaswom managing committee v. thachudaya kaimal @ manickan keralan (dead) by lrs, in which, as per learned counsel for the petitioner, it has been decided by the hon'ble apex court that right to enjoy the property even assuming that the order is correct, is a right only in personam and on demise the right ceases to exist. in this connection therefore, the petitioner prayed for framing the issue of the same nature.3. i have perused the order impugned. it is true that application for framing issue can be filed at any stage, but, in this case, if the petitioner is making prayer that issue is legal issue which is to be adjudicated by the court, then, it is understandable why the petitioner did not bring it to the notice of the court for near-about 20 years and why he has filed the application after closure of evidence of the parties in the case, that too, after 20 years. admittedly, the matter was fixed for final argument and, after taking some adjournments, application was filed for framing yet another issue; but, the learned trial court rejected the application with cost of rs. 300/- while observing that the application is not bona fide one and has been filed only to delay the matter. in my opinion, the learned trial court has not committed any error because the suit was admittedly filed by the petitioner-plaintiff on 2.6.1989 and application for framing another issue after closure of evidence, that too, after 20 years, was filed. therefore; the order of learned trial court in rejecting the application is justified and proper and does not require to be interfered with in this revision petition. there is thus no substance in this revision petition.4. this revision petition is, therefore, accordingly dismissed.
Judgment:

Gopal Krishan Vyas, J.

1. In this revision petition, the petitioner has prayed for quashing order dated 25.5.2009 whereby the learned trial Court dismissed the application filed under Order 14 Rule 5, C.P.C., read with Section 151, C.P.C.

2. According to facts of the case, suit was filed by the petitioner plaintiff on 2.6.1989. On 21.3.2009, evidence of the defendants was closed and matter was fixed for final arguments. Thereafter, an application was filed under Order 14 Rule 5, C.P.C, read with Section 151, C.P.C by the petitioner-plaintiff for framing another issue which is said to be legal issue. Learned Counsel for the petitioner submits that application under Order 14 Rule 5, C.P.C. can be filed at any stage, therefore, the learned trial Court committed error while dismissing the application filed by the petitioner under Order 14 Rule 5, C.P.C. on the ground that it has been filed at the final stage. In support of his argument, learned Counsel for the petitioner invited attention of the Court towards the judgment reported in (1996) 2 SCC 680, Koodalmanickam in Devaswom Managing Committee v. Thachudaya Kaimal @ Manickan Keralan (Dead) by Lrs, in which, as per learned Counsel for the petitioner, it has been decided by the Hon'ble apex Court that right to enjoy the property even assuming that the order is correct, is a right only in personam and on demise the right ceases to exist. In this connection therefore, the petitioner prayed for framing the issue of the same nature.

3. I have perused the order impugned. It is true that application for framing issue can be filed at any stage, but, in this case, if the petitioner is making prayer that issue is legal issue which is to be adjudicated by the Court, then, it is understandable why the petitioner did not bring it to the notice of the Court for near-about 20 years and why he has filed the application after closure of evidence of the parties in the case, that too, after 20 years. Admittedly, the matter was fixed for final argument and, after taking some adjournments, application was filed for framing yet another issue; but, the learned trial Court rejected the application with cost of Rs. 300/- while observing that the application is not bona fide one and has been filed only to delay the matter. In my opinion, the learned trial Court has not committed any error because the suit was admittedly filed by the petitioner-plaintiff on 2.6.1989 and application for framing another issue after closure of evidence, that too, after 20 years, was filed. Therefore; the order of learned trial Court in rejecting the application is justified and proper and does not require to be interfered with in this revision petition. There is thus no substance in this revision petition.

4. This revision petition is, therefore, accordingly dismissed.