RAJ KUMAR Vs. JOS METHIS AND ORS.

JUDGEMENT

(1.) PETITIONER -plaintiff has laid this petition under Article 227 of the Constitution of India to challenge the impugned order dated 30.09.2015 (Annex. 8) passed by the learned District Judge, Udaipur (for short 'the learned court below') whereby learned court below has rejected the application of the petitioner -plaintiff under Order XIV Rule 5 read with Section 151 CPC with cost of Rs. 2,000/ -.

(2.) THERE is a checkered history of the case but for convenience the facts in brevity are that petitioner -plaintiff filed a suit for specific performance of contract against the first respondent and further a relief was craved for possession of the property. Yet another prayer was made seeking direction against all the respondents to execute registered instrument of sale in his favour for the consideration amount of Rs. 7,25,000/ - which was mentioned in the agreement to sale. The learned court below issued summons to the respondents -defendants and none appeared for the respondents. Therefore, ex parte proceedings were taken against them and finally ex parte decree was passed by the learned court below on 22.11.1994. Against the ex parte judgment and decree of the learned court below, the respondent Nos. 2 & 3 laid application under Order IX Rule 13 CPC for setting aside ex parte decree but the said effort of the respondents proved abortive and the learned court below rejected their application by order dated 11.02.2009. Being aggrieved of the said order, the respondent Nos. 2 & 3 filed two separate miscellaneous appeals before this Court which were registered as CMA Nos. 684/2009 & 762/201 respectively. The appeals were finally heard by learned Single Judge on 13.07.2015 and both appeals were allowed whereby the impugned order dated 11.02.2009 rejecting the application for setting aside ex parte decree as well as ex parte decree were set aside and the matter was remanded back to the learned court below for deciding it afresh within six months. After remand, separate written statements were filed by both the respondent Nos. 2 and 3. However, the first respondent has not participated in the proceedings. It is significant to mention here that in the interregnum in execution of ex parte decree conveyance of suit property is executed in favour of petitioner and he was put into possession of the same. The learned court below on the basis of pleadings of rival parties settled six issues for determination on 04.09.2015. Subsequent to that, an endeavour was made by the petitioner for seeking deletion of issue Nos. 1, 2 and 6 and framing following three additional issues: -

(3.) FOR eliciting a favourable order of the learned court below, application (Annex. 7) is submitted by the petitioner. In order to crave requisite relief in the application, the petitioner has averred in the application that looking to the nature of the suit which is for specific performance of contract wherein the first respondent -defendant has not joined the issue to controvert the allegations about his readiness and willingness to perform his part of contract, such pleadings are un -controverted and unimpeachable. It is further averred that to the extent of pleadings in this behalf, respondent Nos. 2 and 3 are not authorised to make any submissions and as such issue Nos. 1 and 2 are not significant and liable to be deleted. While referring to the pleadings of the respondent Nos. 2 and 3 wherein they have categorized agreement to sale which was executed in favour of the petitioner as spurious document and projected themselves as bona fide purchasers, the petitioner has submitted in the application that all these allegations are required to be proved by the respondent Nos. 2 and 3 and, therefore, proposed three additional issues mentioned to supra are required to be framed by putting burden of proving them on these respondents. One more fact is pleaded in the application that plea of respondent Nos. 2 and 3 to resist the decree for specific performance of the contract on the anvil of a positive assertion in the written statements that such decree cannot be granted to the petitioner in want of prayer for cancellation of sale deed executed in their favour requires determination by framing additional issue with resting onus of the same on respondents.