Smt. Lali and Another vs Shri Shyam Lal

Mahesh Grover, J.—The petitioners are aggrieved by the order dated 10.10.2009 vide which the learned trial Court framed two additional issues at the fag end of the trial.

The respondent filed a suit for declaration and permanent injunction on 24.8.2001. The petitioners, who are defendants, filed their written statement and also filed a counter claim thereto. The respondent, who is the plaintiff, did not file any reply to the counter claim and also did not object to the pleadings made therein. The trial proceeded and after the conclusion of evidence when the matter was fixed for arguments, the respondent moved an application for framing of two additional issues which are reproduced as under:

11-A Whether the defendants are entitled to the relief of declaration as claimed in their counter claim?OPD

11-B Whether the counter claim is barred by limitation, as filed by the defendants?OPP

The learned trial court accepted the prayer.

The grievance of the petitioners is that once the pleadings in the counter claim went uncontroverted, the court was precluded from framing any issue on the pleadings which were not at all disputed between the parties.

Learned Counsel for the respondent, on the other hand, has justified the framing of issues and stated that issues can be framed at any stage of the suit even by the court itself.

I have heard the learned Counsel for the parties and have perused the impugned order. The impugned order suffers from a serious infirmity. The respondent never objected to the counter claim and never filed any reply thereto and in such an eventuality when the respondent even did not dispute the averments made in the counter claim, the additional issues which have been reproduced above could not have been framed, more so when the case was at the fag end of the trial.

There is thus merit in the contention raised by the learned Counsel for the petitioners. Consequently, the revision petition is accepted and the impugned order is set aside.