RAGHUVEER SINGH Vs. SUKHDEV SINGH AND OTHERS

JUDGEMENT

(1.) Instant writ petition has been filed by the plaintiff with the prayer to quash the order dated 28.04.2012 passed by Additional Sessions Judge, Srikaranpur, District Sriganganagar passed in Civil Original Suit No. 18/2010 by which the application filed by respondent No. 1 under Order 14 Rule 5 CPC was allowed.

(2.) Learned counsel for the petitioner submits that a gross error has been committed by the trail court in allowing the application filed by respondent No. 1 under Order 14 Rule 5 CPC for framing an issue with regard to availability of alternative remedy. Learned counsel for the petitioner invited my attention that in the plaint itself, there is no specific assertion with regard to alternative remedy available to the plaintiff. Only assertion is made in para 17 that alternative remedy is available. Therefore, while deciding the application filed under Order 14 Rule 5 CPC for framing additional issue, the learned trial court was under an obligation to consider this important aspect of the matter that there is no mention with regard to the remedy available to the plaintiff. Therefore, the order impugned may be quashed whereby learned trial court passed an order for framing additional issue 5A with regard to availability of alternative remedy.

(3.) After hearing learned counsel for the petitioner plaintiff, I have perused the application Annex.4 filed by respondent dated 28.11.11 as well as order impugned dated 28.04.2012. The argument of learned counsel for the petitioner is totally baseless that in the written statement, defendant is required to specify which alternative remedy is available to the plaintiff. In this case, specific assertion has been made in Para 17 of the written statement that alternative remedy is available, therefore, the trial court passed an order for framing the said additional issue for which burden of proof lies upon the defendant to prove the issue. The plaintiff can avail opportunity to prove the maintainability of suit.