HARBHAJAN SINGH Vs. JARNAIL SINGH

JUDGEMENT

(1.) THE civil revision is against the order directing certain issues to be framed and which, according to the petitioners plaintiffs, the trial Court was in error in omitting to frame as issues arising out of the pleading of parties. The suit was filed for specific performance of an agreement of sale and the issues framed was included whether the plaintiff was ready and willing to perform his part of contract and that whether the agreement of sale was capable of being specifically enforced. The defence by the first defendant, inter alia, sets out a plea admitting to the execution of the agreement, but contending that the agreement of sale vis   -vis his share was cancelled by an oral arrangement and that therefore the plaintiffs were not entitled to obtain a specific enforcement. The plaintiffs had sought for framing an issue with the onus of proof cast on the defendant as regards the plea that the agreement of sale was superseded by an oral agreement. The trial Court has rejected the plea of the plaintiffs and has held that the issue already framed regarding the enforceability of the agreement squarely covers the issue of whether the agreement was later superseded orally as regards the share of one of the defendants. The issues at the trial are struck to help the parties' focus on the respective contentions and allow for appropriate evidence to be brought for a proper adjudication. It is no doubt true that an issue regarding the enforceability of the agreement which is an admitted document is wide enough to admit of every subsidiary issue of what the defendant is now pleading to state that the plaintiffs are not entitled to such a relief. However, in my view, it is still not sufficient and if the defendants are setting out a case as to why the plaintiffs are not entitled to obtain specific performance by the fact that there was a subsequent oral agreement, it would require to be specifically spelt out with the onus cast on him so that the issues are properly adjudicated. I, therefore, direct that the following issue shall be framed: - -

(2.) THE impugned order is set aside and the revision petition is allowed with the above directions.