SABARMAL Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) The applicant challenges the order dated. 22.9.1988 whereby an application under Order 14 Rule 5 Civil Procedure Code filed whereby an application under Order 14 Rule 5 Civil Procedure Code filed by defendant No. 2 was rejected by the court. Shri Garg relying on the decision in Suresh Kumar Chouksey v. State, 1985 MPLJ 758 submitted that it was the duty of the court to frame proper issues and that duty has not been performed by the court. Shri. Consul on the other hand supported the impugned order. A persual of the order shows that it is observed therein that the proposed issues were already covered by the issues already framed. The defendant has not been precluded from raising the contentions which he wanted to raise. There was, therefore, no cause for making any grievance againt the order Shri. Garg has further submitted that the grievance is as regards the burden of proof which was clearly spealt out in the proposed issues.

(2.) I am not convinced that the question of burden of proof would attain that relevance while deciding an application for framing of additional issues. If the applicant was aggrieved by placing the burden of certain issues on him, his complaint would have been that the issues already framed were not properly framed. But that is not the complaint in this case. The complaint is that certain additional issues were proposed but were not framed. The court has also held that the issues were framed on 9.4.1987 and thereafter the case was fixed on several dates. The defendants No. 1 never objected on any of these dates, to the issues framed and had suddenly moved application under Order 14 Rule 5 Civil Procedure Code on 12.1.1988. On that date also in the earlier half of the day a plaintiff's witness had not come and, therefore, the case was kept in the later half . When it was taken up at 2.46 p.m. again the witness was absent and the case was ordered to be taken up at 3 p.m. At this time this application was moved. If the court has in the circumstances found the application to be unreasonably belated, it cannot be said that the court has committed any illegality of material irregularity.