Dismissed

Prem Nath Khanna and Anr. v. Asha Khanna and Ors.

Punjab & Haryana HC20 Mar 2012CR/1752/2012

Case brief

AI extract

What is this about?

The High Court dismissed a revision petition challenging the First Appellate Court's order refusing to frame additional issues regarding a Will in a partition suit, observing that the right to frame issues was not pressed earlier and the facts distinguished the cited Supreme Court precedent.

What did the court decide?

The revision petition was dismissed with the direction that the judgment be sent to the trial court for strict compliance.

Prem Nath Khanna and Anr. Vs Asha Khanna and Ors. — Partition | Punjab & Haryana HC (2012)

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Civil Revision No.1752 of 2012

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No.1752 of 2012 Date of decision 20.03.2012.

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Prem Khanna and Anr.

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...... Petitioners.

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versus

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Smt. Asha Khanna & Ors

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.. .... Respondents.

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CORAM:- HON'BLE MR. JUSTICE K.C. PURI

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Whether Reporters of Local Newspapers may be allowed to see the judgment?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Present : Mr. V.K.Sandhir, Advocate for the petitioners.

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K.C.PURI. J.

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Challenge in this revision is the order dated 23.2.2012 passed by Shri Rakesh Kumar, Additional District Judge Adhoc, Fast Track, Amritsar vide which the application under Order 41 Rule 25 of the Code of Civil Procedure ( in short – the CPC) filed by Prem Khanna and others before the First Appellate Court was dismissed.

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Briefly stated plaintiff before the trial Court, appellant before the First Appellate Court and revisionist before this Court filed a suit for

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Civil Revision No.1752 of 2012

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partition and rendition of accounts on various grounds. That suit was resisted by the defendants by filing written statement whereas defendant Nos.1 to 4 filed counter claim also before the trial Court.

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The trial Court after adjudication dismissed the suit. The plaintiff/appellant filed an application under Order 41 Rule 25 CPC read with Order 14 Rule 5 CPC and Section 151 of the CPC with the allegation that in para No.4 of the written statement defendant Nos.1 to 4 had pleaded about the Will dated 28.7.1993 in their favour alleged to be executed by Roshan Lal. The plaintiffs have denied the execution of the said Will. It was the duty of the trial Court to frame issues regarding Will. So, the prayer has been made for framing issues regarding execution and validity of the Will and remanding the case to the trial Court for deciding afresh.

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The said application was resisted by the defendantsrespondents.

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The First Appellate Court after hearing both the sides dismissed the said application.

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Feeling dissatisfied with the above said order dated 23.2.2012, the present revision petition has been filed.

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The learned counsel for the petitioner has submitted that defendants have pleaded about the execution of Will of Roshan Lal in their favour. No specific issue has been framed. Non-framing of the said issues has vitiated the trial. So, prayer has been made for framing issue regarding execution and validity of the Will and for remanding the case under Order 41 Rule 25 of the CPC.

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Civil Revision No.1752 of 2012

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In this case, the trial Court observed that issues in the present case were framed on 27.1.1990 but no issue regarding the Will of Roshan Lal was pressed for. It is further submitted that later on an application for framing additional issues was moved by the plaintiff and additional issues were framed on 10.9.1997. The present application has been filed on 2.1.2012 i.e., after lapse of 20 years after the framing of issues. No doubt, mere delay is not sufficient to dismiss the application but it is settled law that once the parties are alive to the case of each other, in that case nonframing of issue is immaterial. Otherwise also, the plaintiffs are not the natural heirs of Roshan Lal. There was arbitration Award in the year 1982 prior to the execution of the Will. So, all the questions, i.e. what is the effect of that arbitration Award and effect of execution of Will have to be considered by the First Appellate Court at the time of final decision of the appeal.

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So far as authority Smt. Bachahan Devi & Anr. vs. Nagar Niga, Gorkhpur & Anr. 2008(2) RCR (Civil) 367 (SC) relied upon by the counsel for the petitioner is concerned, in that authority it has been held that in case the First Appellate Court came to the conclusion that there is necessity for framing issue in that case report under Order 41 Rule 25 CPC of the trial Court can be called for. The First Appellate Court has the option to itself record such evidence. The facts of Smt. Bachahan Devi & Anr's case (supra) are distinguishable to the facts of the present case. In that case, amendment was allowed in the appeal and the First Appellate Court remanded the case for fresh decision after framing issues after

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Civil Revision No.1752 of 2012

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amendment. The High Court was of the view that Appellate Court was committing illegality in remanding the matter for fresh consideration and it was observed that Appellate Court should have exercised the power under Order 41 Rule 25 CPC and should have called for the report of the trial Court. In the present case, there is no amendment of pleading by any party and as such the petitioner cannot have the benefit of the above said authority.

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So, in view of the above discussion, I see no illegality in the order passed by the trial Court.

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Consequently, the revision petition is without any merit and the same stands dismissed.

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A copy of this judgment be sent to the trial Court for strict compliance.

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( K.C. PURI ) JUDGE

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March 20 , 2012 sv

Prem Nath Khanna and Anr. v. Asha Khanna and Ors.

Case brief

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Prem Nath Khanna and Anr. v. Asha Khanna and Ors.

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