GOPICHAND Vs. GOVERNMENT OF RAJASTHAN

JUDGEMENT

(1.) THIS ia a plaintiff's application for revising the order of the Civil Judge, Jaipur City framing the additional issue and giving an opportunity to both the parties to produce evidence upon it. In his suit the plaintiff alleged that a sum of Rs. 7686/9/- which was being demanded from him on account of excise duty on tobacco was not chargeable from him. The defendant alleged that the duty was chargeable. Several issues were framed in the case and parties produced their evidence which was concluded on the 12th January, 1951-The case was partly argued on the 17th January, 1951 and at that time it was realised by the court that the following issues were necessary for the decision of the case and therefore, it framed the said issue and allowed both the parties to produce evidence thereon purporting to exercise the powers conferred by Order 14 Rule 5 of the Civil Procedure Code "whether present stock of tobacco shown in the declaration form by the plaintiff was not of Jaipur produce, or manufacture and if so to what extent. " The plaintiff comes in revision complaining that the lower court ought not to have framed this issue and at any rate ought not to have allowed parties to produce evidence thereon. Learned counsel for the applicant has argued that the question whether the stock of tobacco in question was or was not of Jaipur produce or manufacture was implied in his averment in para 5 of the plaint where he has said that no such tobacco produced in Jaipur was liable to duty and the defendant ought to have known that the plaintiff's case was that the said stock was not of Jaipur produce. The defendant did not take any objection that the tobacco was produced in Jaipur. In his cross-examination he put certain questions to the plaintiff on the point whether the tobacco was produced in Jaipur or was imported from outside and he therefore, knew fully well that this question was material in the case. He however, produced no evidence on this point. If he found at the time of arguments that he had made a mistake in alleging and proving that the tobacco was the produce of Jaipur he cannot claim after the evidence was concluded that an additional issue be struck and he be given an opportunity to adduce evidence.

(2.) ON behalf of the opposite party it has been argued that it was the plaintiff's duty to say clearly in his plaint that the tobacco in question was not a Jaipur produce. This was the most material question in the case. It could not be implied from the averment of the plaintiff in para 5 of the plaint which is merely a statement of law. Without deciding this question the case could not be decided. The lower court therefore, acted with perfect justification when it struck a cleat issue on this point and gave both the parties opportunity to produce their evidence. It was argued that the lower court has not usurped any jurisdiction not vested in it nor acted illegally or with material irregularity in the exercise of its jurisdiction. The revision was therefore, not permissible.