Civil Revision No.531/2011 #1# IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.531/2011 Date of decision:25.1.2011. Shashi Kant .............Petitioner v The Municipal Council and others ..............Respondents CORAM: HON'BLE MR.JUSTICE JASWANT SINGH Present:- Mr.Brijender Kaushik,Advocate for the petitioner. Jaswant Singh,J Petitioner/defendant no.3 is aggrieved against the order dated 18.12.2010 (P7) passed by the learned Civil Judge (Junior Division) Ambala, whereby the application moved by the petitioner/defendant for framing of an additional issue has been dismissed. Briefly noticed, it is averred in the petition that plaiintiff- respondent no.3-Shri Prem Narayan filed a civil suit No.36 of 2002 dated 12.10.2002 praying for mandatory injunction directing the defendants-respondent Nos.1 & 2 to sanction a mutation of the properties (houses) described in the head note of the plaint in favour of the plaintiff-respondent No.3, in the Record of Municipal Council, Civil Revision No.531/2011 #2# Ambala. After notice, it seems that written statement dated 1.9.2010 (P.2) was filed on behalf of petitioner/defendant No.3-Shashi Kant and resisted the claim of the plaintiff-defendant No.3. Thereafter, the plaintiff-respondent No.3 filed replication dated 7.9.2010 (P.3) and after hearing both the parties and from the pleadings of the parties, the learned trial Court framed the issues vide order dated 7.9.2010 (P.4), which are reproduced as under: “i) Whether the plaintiff is entitled to suit for mandatory injunction as prayed for?OPP ii) Whether the suit of the plaintiff is not maintainable?OPD. Iii) Relief.” During the pendency of the civil suit, an application dated 26.11.2010 (P.5) was filed by defendant No.3-petitioner under Order 14 Rule 5 read with Section 151 CPC for framing of following additional issues to decide the matter in controversy: “a) Whether Sh. Ramji Lal executed a valid Will?OPP b) Whether Smt Shanti Devi executed the Will dated 29.4.1990 in a sound disposing mind if so its effect?OPP” Upon notice, plaintiff filed his reply dated 9.12.2010 (P.6) and after hearing both the parties, learned trial Court has dismissed the application for framing of additional issues vide the impugned order dated 18.12.2010. In these circumstances, present revision petition is filed. Learned counsel for the petitioner heard at length and perused the pleadings on record. Civil Revision No.531/2011 #3# Learned counsel for the petitioner submits that additional issues can be framed at any stage of the suit. It is further submitted that the Court is competent to frame additional issues in order to effectively decide the issue. He further submits that it is the duty of the Court to frame proper issues on all points made out from the pleadings. In support cites Rajinder Tandon v. Thomas Nasir Masih, 1999 (1) PLR 270, and Jasso v. Harbans Singh and another, (2002-3)The Punjab Law Reporter 419. It is the pleaded case of the plaintiff that Smt Shanti Devi widow of Shri Ramji Lal was the mother of the plaintiff and she was the owner in possession of property in dispute and she executed a Will dated 29.4.1990 in favour of the plaintiff/defendant no.3, whereby she had bequeathed the said property in the name of the plaintiff. It is further averred that said Smt.Shanti Devi died on 4.5.2002 and thereafter an application dated 21.5.2002 was made before the Municipal Authorities by the applicant/plaintiff. Since no action was taken, plaintiff filed the suit on 12.10.2002. The petitioner/defendant no.3 was not impleaded as party in the civil suit. However, he moved an application under Order 1 Rule 10 CPC for his impleadment as party to the said suit. In the said application it was averred by the applicant/petitioner that his father-Rameshwar Dass was son of Shri Ramji Lal from the other wife than Smt.Shanti Devi from whom plaintiff-Prem Narayan was born and, therefore, having an interest in the suit property being an interested party. The said application was Civil Revision No.531/2011 #4# allowed vide order dated 27.10.2009 and the petitioner was allowed to be impleaded as a party/defendant. In the written statement dated 1.9.2010 (P2) filed by the petitioner, it was asserted that the alleged Will dated 29.4.1990 executed by Smt.Shanti Devi was a forged and fabricated document. It was further averred that Smt.Shanti Devi was not competent to execute the Will dated 29.4.1990, since the property was a coparcenary property and Shri Ramji Lal had died intestate without executing any Will. It appears that after some evidence had been led, the petitioner/ defendant in the course of his (defendant's) evidence moved an application under Order 14 Rule 5 CPC praying for framing of the aforesaid additional issues. It is the stand of the plaiintiff that Ramji Lal executed a will dated 6.5.1970 in favour of Smt Shanti Devi and she executed a will dated 29.4.1990 registered on 30.4.1990 in favour of the plaintiff and the property was already lying mutated in favour of Smt.Shanti Devi in the Municipal Records. However, the petitioner is disputing both the wills on the ground that the same are forged and fabricated. There is no dispute that present suit is for mandatory injunction and no declaration is prayed for. Issue No.1 reproduced above is a very wide issue and will cover the objection of the defendant No.3-petitioner and there is no need to frame the additional issues as rightly observed by the learned trial Court while passing the impugned order. The defendant has not challenged the abovesaid will before the competent Civil Revision No.531/2011 #5# court of law for the reasons best known to him. Whatever objection the defendant-petitioner wishes to raise will be considered under Issue No.1 already framed by the learned trial Court. Even otherwise, in the suit for mandatory injunction, the finding with regard to any declaration can only be incidental but not direct and substantial. The defendant has already availed four opportunities to lead his evidence when the present application at a belated stage was moved. So far as legal proposition laid down in the cases referred to by learned counsel for the petitioner is concerned, the same are not applicable to the facts of the present case as issue No.1 is the proper issue to decide the matter in controversy and there is no occasion to frame the additional issues proposed by the defendant-petitioner to decide the matter in controversy. Taking into account the facts discussed hereinabove, this court does not find any illegality or infirmity in the impugned order dated 18.12.2010 (P7) passed by the learned trial Court, which warrants interference by this Court under Article 227 of the Constitution. Dismissed. 25.1.2011. (Jaswant Singh) joshi Judge