Vijay Kumar Chopra vs Prem Nath Mangotra

This revision petition has been preferred against an appellate order passed by learned District Judge, Udhampur.

A suit for dissolution of partnership and rendition of account was filed by one Prem Nath Mangotra against the present petitioners and also

against respondent No. 2. A preliminary decree has been passed. The preliminary decree was challenged in the court of District Judge, Udhampur.

This appeal has been dismissed. Now the present revision petition has been preferred. In this petition, the only argument raised is that truck bearing

no. JK02D1449 and scooter bearing no: JK02C5249 were not the property of the firm and therefore, the PSC should not have been treated as

the property belonging to the partnership and therefore, a receiver should not have been appointed qua the two vehicles referred to above. This

argument was negatived on the ground that one of the partners had taken a stand which suggested that the two vehicles belong to the partnership

firm. Taking note of this aspect of the matter, the appellate court found no justification to interfere. The argument which was urged before the

appellate court is being urged again. It is stated that as an issue was not framed as to whether the vehicles in question belonged to the partnership,

therefore, the resultant finding recorded in the absence of pleading cannot be sustained.

With a view to examine this aspect of the matter it would be apt to mention that the specific stand taken by the plaintiff that the two vehicles

belonged to the partnership. When written statement was filed then the stand taken was that infact there did not exist any partnership firm and

therefore the question of these two vehicles belonging to the partnership concern would not arise. The First Appellate court has rightly observed

that the present appellants had not taken a specific stand that the vehicles did not belong to the partnership firm. All that was stated was that as

there existed no partnership and therefore, the question as to whether the vehicles belonged to the partnership would not arise. It was rightly

concluded that once a finding was recorded that there existed a partnership then the resultant conclusion that the vehicles belonged to the

partnership would follow. This is because there was no specific stand taken by the defendant and one of the partners that the vehicles were the

personal property or these did not belong to the partnership concern. Therefore to say that the view expressed by the trial court requires

interference in the exercise of revisional jurisdiction is an argument which is devoid of merit and same is rejected.

With regard to nonframing of issue, all that is required to be mentioned is that the object of framing issued is to shorten the arena of dispute and

pinpoints required to be determined by the court. Mere omission to frame the issue is not fatal to the trial and this cannot be made a ground to

reverse a decision given on merits by the courts below. This is more so when the parties understood the case and put across their point of view. If

parties have not been prejudiced by the omission and substantial justice has been done then interference is not called for in the exercise of

revisional jurisdiction as invoked by the petitioners. In this regard it would be apt to refer the decision given in the case reported as:

i) Rai Indra Narain Vs. Mohammad Ismail, AIR 1939 Allahadbad, 687;

ii) Chiranji Lal Vs. Shankar Lal and another AIR 1951 Rajasthan 56; iii) Regional provident Fund Commissioner Vs. M/s Hind Builders. AIR

1985 Orissa 103; iv) Khem Chand Vs. Hari Saran and others, AIR 1988 Himachal Pradesh 10.

In Himachal Pradesh case i.e. Khem Chand Vs. Hari Saran reference has been made to the decision given by the Privy Council Council and the

Supreme Court of India. What is stated in paragraphs 8, 9, 10 and 11 is noticed. These paras are reproduced below:

I find great merit in the submissions made by the learned counsel for the appellant. True it is that the court must frame an issue on every material

fact which is in controversy between the parties but every omission to frame an issue is not fatal and the question whether an omission to frame an

issue is an irregularity or illegality which has or which has not affected the disposal of the suit on merits requires to be decided on the facts and in

the circumstances of each case.

In Mitna V. Syed Fuzl, '(1870) 13 Moo Ind App 573 at p.583, the judicial committee said:

In this case the omission to raise the issues was brought before the notice of the appellate court; the appellate court expressed its regret, and their

lordships are glad to observe that it did express its regret that the principal. Sudder Ameen had omitted to settle the issues. The (appellate) court,

however, nevertheless conceived that it was not under any positive obligation to remand the case; but seeing that the parties had gone to trial

knowing what the real question between them was, that the evidence had been taken, and that the conclusion had been in the opinion of the

appellate court correctly drawn from that evidence, they thought it within their competence to affirm that decision without sending the case back for

a retrial. Their lordships sitting here are not prepared to say that the court had not power to do so. (Their lordships) think that under all the

circumstances of the case, substantial justice having been done, there has not been that fatal mistrial of the cause which vitiates all the proceedings

and renders a new trial necessary"".

Similar observation are to be found in para 6 of the decision in Nedunuri Kameshwaramma v.Sampati Subba Rao, AIR 1963 SC 884,

wherein it has been observed:

No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since 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 of the other side, it cannot be said that the

absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could

not be dismissed on this narrow ground, and also that their is no need for a remit, as the evidence which has been led in the case is sufficient to

reach the right conclusion.

The mere omission, therefore, on the part of a trial court to frame an issue on a matter in controversy between the parties cannot be regarded

as fatal unless, upon examination of the record it is found that the failure to frame the issue had resulted in (sic) the parties having gone to the trial

without knowing that the said question was in issue between them and having, therefore, failed to adduce evidence on that point.

In the present case the parties understood their case. The very existence of the partnership was denied. This plea was found to be tenable. If this

be the situation then this is not a case which requires interference on revisional side. This petition is found to be without merit and is dismissed.