SANDEEP SHARMA Vs. NARINDER SHARMA

JUDGEMENT

(1.) By way of present petition filed under Art. 227 of the Constitution of India, challenge has been laid to order dated 16.9.2019 passed by learned District Judge, Hamirpur, Himachal Pradesh in CMA No. 629 of 2017 in Civil Appeal No. 30 of 2017, whereby an application under Order XIV, rule 5 CPC having been filed by the petitioner-defendant (hereinafter, 'defendant') praying therein for framing of additional issues, came to be dismissed.

(2.) Having heard learned counsel for the parties and perused material available on record vis ƒ  -vis reasoning assigned by learned Court below, while passing impugned order dated 16.9.2019, this Court is in agreement with Mr. Naresh K. Sharma, learned counsel representing the defendant that learned Court below has wrongly interpreted the judgment rendered by Hon'ble Apex Court in Saleem Bhai vs. State, 2003 1 SCC 557. Careful perusal of aforesaid judgment rendered by Hon'ble Apex Court clearly suggests that the observation/finding of the court that the court, while ascertaining cause of action, is only required to take into consideration the averments contained in the plaint, is altogether in different context. In the case before Hon'ble Apex Court, controversy was with regard to rejection of plaint by a Court, while exercising power under Order VII, rule 11 CPC. Hon'ble Apex Court, while holding that an application under Order VII, rule 11 can be filed at any stage of suit before pronouncement of judgment, categorically held that for the purpose of deciding an application under clauses (a) and (d) of rule 11 of Order VII CPC, averments in the plaint are germane and pleas taken by the defendant in the written statement are wholly irrelevant at that stage. Aforesaid observation/finding returned by court below is definitely in the context of exercise of jurisdiction by court below under Order VII, rule 11 CPC.

(3.) Bare perusal of the provisions contained in Order XIV, rule 5 CPC, which is reproduced herein below, nowhere suggests that the court, while determining the cause of action, if any, is only required to look into the averments contained in the plaint, rather, aforesaid provision of law casts a duty upon the court to frame issue, after reading the plaint and written statement, if any. At this stage, it would be apt to take note of Order XIV, rule 5 CPC: