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Jiwan Lal and anr. Vs. Omega Tools (P) Ltd., New Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 372 of 1971
Judge
Reported in8(1972)DLT505
ActsCode of Civil Procedure (CPC), 1908 - Order 14, Rule 5
AppellantJiwan Lal and anr.
RespondentOmega Tools (P) Ltd., New Delhi and ors.
Advocates: G.N Aggarwal,; R.K. Agarwal and; K.R. Gupta, Advs
Excerpt:
.....and rendition of account - it was observed that the trial court had erred in placing the burden of issues on the plaintiff and there was no error in issues -it was ruled that the trial court was right in placing the burden on the plaintiff and there being no merit in the petition, it was liable to be dismissed - - if the revisional jurisdiction of the high court is invoked in respect of an order falling within the scope of order 14, rule 1 (5) of the code, then the high court will examine whether the court acting there under had exercised a jurisdiction not vested in it by law or had failed to exercise the jurisdiction which it had or had acted illegally or with material irregularity in exercise thereof. 13. in case of their failure to prove that the partnership stood dissolved as..........of accounts. the suit was contested and issues were framed on the 26th of october, 1968. the onus of issues nos. 1 to 10 and 15 was placed on the defendants and the onus in respect of the other issues was placed on the plaintiffs. the petitioners (plaintiffs) moved, an application dated the 18th of may, 1971, under order 14, rule 5 read with section 151 of the code praying that the issues may be amended. in paragraph 3 of that application it was staled that issues nos. ii to 19 deserved to be reframed, as suggested therein. (3) the contention raised before me on behalf of the petitioners, however, is only this that the trial court erred in placing the burden of issues no. 11 to 14 and 17 on the plaintiffs and the grievance will be eliminated if the onus is placed on the defendants......
Judgment:

P.S. Safeer, J.

(1) By the order dated the I8lh of May, 1971, the trial court dismissed the plaintiff's application filed under order i4, rule 5 of the Civil Procedure Code (hereafter called 'the Code' and it is against that order that the petitioners have come up in revision.

(2) The petitioners filed a suit for dissolution of partnership and rendition of accounts. The suit was contested and issues were framed on the 26th of October, 1968. The onus of issues Nos. 1 to 10 and 15 was placed on the defendants and the onus in respect of the other issues was placed on the plaintiffs. The petitioners (plaintiffs) moved, an application dated the 18th of May, 1971, under order 14, rule 5 read with section 151 of the Code praying that the issues may be amended. In paragraph 3 of that application it was staled that issues Nos. Ii to 19 deserved to be reframed, as suggested therein.

(3) The contention raised before me on behalf of the petitioners, however, is only this that the trial court erred in placing the burden of issues No. 11 to 14 and 17 on the plaintiffs and the grievance will be eliminated if the onus is placed on the defendants. In this case although the suit was originally filed in December, 1967, the plaint was later on amended and the surviving plaint bears the date 19th April, 1968. After the amendment of .the plaint the defendants filed a fresh written statement dated the 2nd of May, 1968. The trial court having framed the issues on 26th of October, 1968, the plaintiff, started examining evidence and P. W. 1 was examined on the 12th of May, IS69. There were several adjournments and the plaintiffs having examined three other witnesses the statement of P. W. 5 was recorded on the 21st of August, 1969.

(4) This is a case in which the plaintiffs moved the application under order 14, rule 5 of the Code on 18th May, 1971, after having examined five witnesses. It is urged on the petitioners' behalf that the evidence of the P. Ws examined was not concerned with the issues in respect of the burden whereof it urged that it should be shifted on to the defendant?. There is no bar in order 14, rule 5 of the Code to the presentation of an application after the examining of some evidence by any of the parties The controversy has, however, to be looked at from the angle that the issues are framed under order 14, rule (5) of the Code, which is :-

'(5)At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.'

The placing of onus of proof is a part of the framing of the issues. The power is exercised under the aforequoted provision. If the revisional jurisdiction of the High Court is invoked in respect of an order falling within the scope of order 14, rule 1 (5) of the Code, then the High Court will examine whether the court acting there under had exercised a jurisdiction not vested in it by law or had failed to exercise the jurisdiction which it had or had acted illegally or with material irregularity in exercise thereof.

(5) Where the High Court is moved under section 115 of the Code against an order by which the court below may have dismissed an application preferred under order 14 rule 5 of the Code, the i it will have to go into the terms of that provision in order to find whether the impugned order deserves to be interfered with. Order 14, rule 5 of the Code is:-

'5.(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary Jor determining the mailers in controversy between the parties shall be so or framed, (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or intoduced.'

The jurisdiction which the court may exercise within the opening part of the provision being discretionary, will be exercised in accordance with juridical principles and the order disposing of an application invoking that part need only be free from arbitrariness. The second part of order 14, rule 5(1) is imperative inasmuch as it provides that all such amendments in the issues shall be made or all such additional issues shall be framed as may be necessary for determining the matters in controversy between the parties. Where it can be shown that an order dismissing an application filed tinder order 14, rule 5 amounts to a refusal to exercise jurisdiction for amending the issues or framing additional issues as may have been necessary for determining the matters in controversy, there would be scope for interference under section 115 of the Code. Where, however, the application does not ask for the amendment or the addition of issues for the purpose of determing the matters in controversy, but seeks their amendment or the reframing thereof for some other reasons and it is not shown that the order suffers from any jurisdictional infirmity in respect whereof the revisional jurisdiction contained in section 115 of the Code may be exercised, then it will not be competent to the High Court to interfere with such an order.

(6) The learned counsel for the petitioners has cited several cases in order to urge that incorrect 'placing of onus would be a material irregularity liable to be interfered with in exercise of the jurisdiction given by section 115 of the Code. The citations including Ramesh Chandra. H D. Jam College, Arrah, have no relevance. If the petitioners had come up against the order dated the 26th of October, 1968, framing the issues and had urged that placing of erroneous onus was a material irregularity, the citations would have been of help to them. No revision petition was moved against the order dated the 26th of October, 1968, in terms where of the issues were framed and onus of proof was placed on the plaintiffs or the defendants in respect thereof. the petition is directed against the order dismissing the application filed under order 14, rule 5 of the Code

(7) I have been taken through the amended plaint, the written statement tiled there to, the alleged deed of partnership and the issues have been referred to many times. Issues 11 to 14 and 17 in respect whereof it is urged that the onus be placed on the defendants are :-

'(11)Whether there exist a partnership if so who are the parties to the partnership (objected to) O.P.P. (12) What are the terms of partnership. What is the effect of notice of dissolution OP.P. (13) Whether the partnership stands dissolved as alleged in the plaint. If so, from which date & O.P.P. (14) If issue No. 13 is not proved whether there are grounds for dissolution of partnership If so when should the partnership be deemed as dissolved O.P.P. (17) Whether the plaintiffs are entitled to exclusive possession of the premises on dissolution of the alleged partnership (objected to). O.P.P.

(8) A reference made to paragraph l(f) of the amended plaint would show as to why the trial court felt the need of framing issue No. 11. The petitioners as plaintiffs pleaded therein:-

'1(F)That if it is held that defendant No. 2 could not enter into partnership and sign the deed of partnership on behalf of defendant No. 1 and that there was no partnership between the plaintiffs and defendant No. 1, the plaintiffs allege that there was partnership between the plaintiffs on the one hand and defendants Nos. 2 and 3 or defendant No. 2 alone on the other.'

The aforesaid allegation amounted to the assertion of alternative partnerships. That plea was raised by the plaintiffs. Issue No. 11 required the proof as to whether a partnership came into existence and if so who were the panics to that partnership. Its onus was rightly placed on the plaintiffs. As the plaintiffs were to prove a particular partnership, they were also to prove the terms which were to prevail between its partners. It had been alleged by them that they had given a notice of dissolution of partnership. It was for them to prove the effect of that notice. Issue No. 12 was correctly framed and its burden was appropriately placed.

(9) It had been alleged by the plaintiffs that the partnership stood dissolved. Having made that assertion it was for the plaintiffs to prove in terms of issue No. 12 whether their partnership with particular persons stood dissolved according to the allegations made by them in the plaint and if so from which date. I do not find any error in issue No. 13 and the trial court was right in pleading the onus on the plaintiffs.

(10) Issue No. 14 is ancillary to issue No. 13. In case of their failure to prove that the partnership stood dissolved as alleged in the plaint it was certainly for the plaintiffs to prove that there otherwise were grounds for its dissolution, I do not find any error committed by the trial court in framing issue No. 14 and in deciding that the plaintiffs will have to prove it.

(11) The plaintiffs had asserted in the plaint that they were entitled to the exclusive possession of the concerned premises on dissolution of the alleged partnership. Issue No. 17 was certainly to be framed in the manner in which it stands and the onus placed by the trial court calls for no interference.

(12) There is no merit in the petition and the impugned order passed in exercise of the jurisdiction given by order 14, rule 5 of the Code does not suffer from any infirmity calling for interference under section 115 thereof. The petition is dismissed without any order as to costs.


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