KAMLESH SAPRE AND ORS. Vs. RAGHUVAR DAYAL

JUDGEMENT

(1.) Petitioners, who are defendants before the trial Court, have filed this petition being aggrieved by order dated 13.11.2017 passed by the Court of Civil Judge Class- II, Kurwai, District Vidisha in Civil Suit No. 37-A/2012, whereby the trial Court after closure of the evidence of the plaintiff has allowed plaintiff's application under Order 14 Rules 1, 3, 4, and 5 of the Code of Civil Procedure and has deleted the issues framed earlier and has framed 07 new issues and has fixed the case for evidence of the defendants on the grounds not permissible under the law.

(2.) Learned counsel for the petitioners submits that the impugned order is illegal and the Court below has erred in entertaining the application of the plaintiff after closure of plaintiff's evidence and after filing of the affidavits of chief examination by the defendants. It is submitted that since the plaintiff has sought decree of possession on the basis of the ownership, therefore, the issues were correctly framed and the issues so framed on 12.12.2013 were already in the knowledge of the plaintiff, but after closing his evidence has moved an application for deletion of earlier issues and framing of additional issues, which is not permissible under the law. He has placed reliance on the judgment of this Court in the case of Virja v. Jumma as reported in 1989 (2) WN 155, in which the ratio is that if the additional issues are framed, the parties should be given opportunity to adduce evidence.

(3.) On the other hand, the learned counsel for the plaintiff submits that the plaintiff had filed a suit for eviction of the tenant and for recovering possession of the suit property and recovery of mesne profits. This fact can be seen from the relief clause in which he sought payment of rent and compensation of Rs. 25,000/- and mesne profit of Rs. 1,000/-. It is submitted that earlier the issue was framed to the effect that whether the plaintiff is the owner of the suit property mentioned in the enclosed map; whether the defendants have illegal possession over the suit property; and whether the plaintiff is entitled to receive a sum of Rs. 8,000/- from the defendants. It is submitted that these issues did not cover the aspect of relationship between the plaintiff and the defendants as that of landlord and tenant and also whether the plaintiff had served a legal notice seeking recovery of rent and act of the defendants in not paying the said rent. Consequently, the application was moved and the trial Court admitted that since the suit has been filed seeking a decree under Section 12 (1)(a), 12 (1) (c) and 12 (1)(e) of the M.P. Accommodation Control Act and the issues framed earlier were not in accordance with the provisions contained in aforesaid sections, therefore, the trial Court deleted those issues and framed fresh issues in place of the earlier issues.