Ajit Singh vs Jaswinder Kaur and Others

Alok Singh, J.—Present petition is filed challenging the order dated 1.11.2010 passed by the Civil Judge (Junior Division), Jalandhar.

From the perusal of the file it is revealed that vide order dated 14.5.2010 Plaintiff was permitted to carry out the amendments in the plaint. Thereafter, Plaintiff has filed amended plaint on the record. However, the Defendants have moved an application seeking review of the order dated 14.5.2010 contending therein that Plaintiff was never permitted to file amended plaint by adding relief of recovery. The amended plaint is beyond the amendment allowed by the trial Court. Defendants/Petitioner further contended in the application that amended written statement to the amended plaint be also accepted on the file and any additional issue, if arises for consideration, should also be framed.

Learned trial Court has observed in the impugned order that relief for recovery has already been not pressed by the Plaintiff, which was sought to be added in the amended plaint beyond the amendment permitted, hence plaint cannot be rejected on the ground that relief for recovery was wrongly added. By the impugned order, trial Court has also accepted the additional written statement filed by the Defendants/Petitioner to the amended plaint. I do not think any illegality is done by the trial Court by accepting the written statement filed by the Defendants/Petitioner. Now the question remains as to whether trial Court could have framed additional issue, which was not framed and case was directed to be listed for the evidence.

Hon''ble Apex Court in the matter of Nedunuri Kameswaramma Vs. Sampati Subba Rao, has held as under:

Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those the other side, it cannot be said that the absence f an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer.

As per dictum of the Apex Court in the matter of Nedunuri Kameswaramma (supra) non-framing of issue would not vitiate the proceedings if parties with open eyes understanding well the pleadings of both the parties have adduced the evidence. In the present case, main issue according to the learned Counsel for the Petitioner is as to whether father of the Petitioner was the owner of the suit land. Plaintiff being granddaughter of Sh. Ujjagar Singh, father of the Petitioner, is claiming title from Sh. Ujjagar Singh on the basis of ''Will'' and Petitioner is claiming inheritance from Sh. Ujjagar Singh, hence in the present case both the parties have to prove that, in fact, Ujjagar Singh was the owner. Until and unless it is proved that Ujjagar Singh is the owner neither Petitioner could inherit the property being son/natural heir nor the Plaintiff/Respondent could inherit the property from Ujjagar Singh on the basis of alleged ''Will''. In view of this no further clarification/direction is required.

Present petition is dismissed.