// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.2763/2006 Smt. Kisturi W/o Prakash Chand Sunda and Others Versus Additional Civil Judge (Jr.Div.) No.1, Sikar and Others Date of Order ::: 07.08.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri R.K. Agrawal, Counsel for petitioners Shri Anoop Dhand with Shri Gajendra Bhawan, Counsel for respondents #### By the Court:- Admit. Shri Anoop Dhand, Advocate, accepts notice on behalf of the respondents No.2/1 to 2/4. Service of respondent No.1 is dispensed with. Heard learned counsel for the parties. This writ petition, on behalf of the plaintiffs, is directed against the impugned order dated 21st March, 2006 passed by the trial court whereby application of the plaintiffs under Order 14 Rule 5 CPC for framing of additional issues has been rejected. The plaintiff-petitioners filed a suit for eviction and permanent injunction in the trial court in respect of rented premise // 2 // against the defendant-respondents wherein it was contended that the tenancy of defendants has been terminated by giving a notice, the reference of which has been given in Para Nos.3 and 5 of the suit. The suit was contested by the defendants by filing a written-statement. The trial court framed five issues on 3rd October, 2002. Both the parties led their evidence and the matter was posted for final arguments. The plaintiffs filed an application under Order 14 Rule 5 CPC on 17th February, 2005 to re-frame five issues as mentioned in the application. The application was contested by the defendants by filing a written-reply. The trial court observed that the proposed Issues No.2 to 5 have already been framed in the case. So far as proposed Issue No.1 relating to notice under Section 106 of the Transfer of Property Act is concerned, the same is included in the Issue No.3. The learned counsel for the petitioners contended that the rented premise is situated in village Bajor, Tehsil and District Sikar, where the provisions of the Rent Control Act are not applicable and the tenancy is required to be terminated under section 106 of the Transfer of Property Act and, as and when the tenancy is terminated, the plaintiffs become // 3 // entitled to receive the possession of the rented premise. In case the rented premise is not vacated by the defendants then the plaintiffs are entitled to file a suit for eviction/dispossession of the defendants and they are required to prove that they have given valid notice and no other requirement is there to be pleaded and proved in the matter. He further contended that although the Issues were framed in the presence of both the parties, but it was a duty of the court also to see that proper issues are framed in the case. He contended that so far as proposed Issues No.2 to 5 are concerned, he does not press his application or writ petition but, so far as proposed Issue No.1 is concerned, the same is necessary and, in absence of said Issue, no effective relief can be granted to the plaintiffs in the present case. He further contended that so far as delay of proceedings is concerned, the defendants can be compensated by way of costs. The learned counsel for the respondent contended that Issues were framed in the presence of both the parties but no objection was raised on behalf of the plaintiffs at that time, therefore, no indulgence should be granted to the plaintiffs now at this stage // 4 // when the case is already fixed for final arguments. He also contended that the matter has unnecessarily been delayed for which the plaintiffs are responsible. I have considered the submissions of learned counsel for the parties and examined the impugned order passed by the trial court along-with other documents annexed with the writ petition. I have also examined the plaint and I find that there is specific pleading in para No.3 about giving of notice under Section 106 of the Transfer of Property Act. The rented premise is situated in a village where the provisions of the Rent Control Act are not applicable, therefore, the Issue No.1 appears to be necessary in the facts and circumstances of the present case. The reason assigned by the trial court about Issue No.1 that it is covered in Issue No.3, is absolutely illegal and perverse. The proposed Issue No.1 cannot be equated with Issue No.3 already framed in the case and, in my view, the trial court has committed an illegality in not framing relevant and material issue i.e. proposed issue No.1 in the present case. I further find that unless the proposed Issue No.1 is framed in the case, no effective relief can be granted to the plaintiffs. So far as delay of proceedings is // 5 // concerned, a reasonable costs can be imposed on the plaintiffs. In the result, the writ petition is allowed. The impugned order dated 21st March, 2006 passed by the trial court is set-aside. The trial court is directed to add proposed Issue No.1 only, as mentioned in the application dated 17th February, 2005. The learned counsel for the plaintiff-petitioners submits that he will not lead any evidence in support of this Issue as he has already placed on the record the required notice while examining himself. The trial court is, therefore, directed to add the proposed Issue No.1 and fix the case for defendant's evidence and to proceed with the suit further in accordance with the law. So far as delay of proceedings on the part of the plaintiffs is concerned, it is directed that the plaintiffs will pay a sum of Rs.1000/- (Rupees one thousand only) as costs to the defendant within a period of four weeks from today failing which the proposed Issue No.1 will not be added. So far as this writ petition is concerned, the costs is made easy. (Narendra Kumar Jain) J. //Jaiman// // 6 //