CW 5590/2009-Jai Gopal Vs. Deevan Chand Arora Judgment dt.3.7.09 1/4 S.B. CIVIL WRIT PETITION NO.5590/2009 Jai Gopal Vs. Deevan Chand Arora Date of order : 3rd July, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. A.K. Rajvanshi for the petitioner. ------- 1. Heard learned counsel. 2. This writ petition is directed against the order dated 1.5.2009 whereby the learned trial court has allowed the application of the plaintiff under Order 14 Rule 5 C.P.C. and framed additional issue No.4-A with regard to validity of family settlement dated 18.10.1989. 3. Learned counsel Mr. A.K. Rajvanshy vehemently urged that the same issue was framed in earlier suit filed by the present petitioner Jai Gopal seeking injunction against his father defendant Deevan Chand Aroda which has been decreed in his favour on 22.3.2003 vide Annex.5 and the defendant's appeal was also dismissed. According to him, the issue No.4 was to the same effect as to whether the family settlement being dated 18.10.1989 was CW 5590/2009-Jai Gopal Vs. Deevan Chand Arora Judgment dt.3.7.09 2/4 forged as the same was not registered. The learned trial court found in favour of the plaintiff, the present petitioner Jai Gopal that said family settlement deed was not forged and said issue was decided against the defendant. 4. A perusal of the said finding in para No.12 and 13 of the judgment and decree dated 22.3.2003 indicates that the burden of the said issue No.4 was kept on the defendant, the plaintiff in the present suit, the father Mr. Deevanchand and he failed to lead any evidence in support of the said issue before the learned trial court. The learned trial court in para 13 discussing the issue as to whether the said family settlement deed requires registration or not and while discussing High Court judgment came to the conclusion that the said document did not require any registration and on the basis of witnesses produced by the plaintiff, the present petitioner, namely that of Girdharilal, Ashok Kumar and Shivadattamal, the learned trial while deciding the application said that the document was not forged. 5. Mr. A.K. Rajvanshi, therefore, submits that there is no need to frame the said issue again in the present suit for possession filed by the plaintiff Deevan Chand. He further submits that the four issues already framed by the trial court in the said suit are adequate CW 5590/2009-Jai Gopal Vs. Deevan Chand Arora Judgment dt.3.7.09 3/4 and the said additional issue has been framed on the basis of aforesaid pleading filed by way of rejoinder before the learned trial court. He, therefore, assails the validity of the said order dated 1.5.2009 allowing the application of the plaintiff under Order 14 Rule 5 C.P.C. 6. Having heard learned counsel, this Court is of the opinion that there is no error in the impugned order dated 1.5.2009 allowing the said application. The earlier finding in the said suit filed by the present petitioner for injunction did not decide title nor the same could have been decided in the suit for injunction filed by the plaintiff and, therefore, the findings of the learned trial court in para No.13 of the judgment dated 22.3.2003 are virtually exparte findings since the defendant Deevanchand failed to adduce any evidence with regard to said family settlement dated 18.10.1989 during the course of earlier suit. In the present suit filed by the plaintiff, however, on the basis of pleadings including rejoinders duly permitted by the court to be taken on record, the learned trial has framed additional issue No.4A with regard to validity of the said family settlement dated 18.10.1989 No valid exception can be taken to the same by the defendant petitioner. The argument of res judicata is open when the final arguments are advanced before the learned trial court. Framing CW 5590/2009-Jai Gopal Vs. Deevan Chand Arora Judgment dt.3.7.09 4/4 of such additional issue at this stage is not found to be ex facie illegal or wrong. Therefore, the said order dated 1.5.2009 does not require any interference by this Court under Article 227 of the Constitution of India. 7. This writ petition is found to be devoid of merit. The same is accordingly dismissed. Copy of this judgment be sent to the opposite party as well as learned trial court. [ DR. VINEET KOTHARI ], J. item No.9 babulal/