CR No. 8212 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 8212 of 2010 (O&M) Date of decision:- 17.12.2010 Gurcharan Singh ......petitioner vs. Smt. Gursev Kaur and ors ......respondent CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. Ajay Ghangas, Advocate for the petitioner HEMANT GUPTA, J (ORAL) Defendant-petitioner is in revision aggrieved against the order passed by learned first Appellate Court on 6.12.2010 whereby an application filed by defendant to frame additional issues arising out of the pleadings of the parties were declined. Plaintiff-respondents have filed a suit for specific performance of an agreement to sell dated 24.2.1981 on 14.7.1981. The issues were framed on 7.9.1982. The suit was decreed by learned trial Court on 12.8.1987. Subsequently, the proceedings remained pending as some of the defendants filed an application for setting aside the ex-parte judgment and decree. After the conclusion of the said proceedings, the petitioner filed an application for framing the additional issues in respect of the plea that the petitioner is a purchaser of the property on the basis of the prior agreement to sell. Learned first Appellate Court has found that both the parties have led evidence and argued the case on such plea. Therefore, the CR No. 8212 of 2010 -2- application for framing of additional issues does not merit acceptance. Learned counsel for the petitioner could not dispute the fact that the petitioner has in fact led evidence in respect of the prior agreement to sell. Therefore, both the parties have understood the case and has led evidence. Therefore, even if, the specific issue is not framed, it is not material. In a Division Bench judgment of this Court reported as 1982 PLR 9 Ram Niwas and others vs. Rakesh Kumar and others, it has been held to the following effect: - “(5) .............It is well-settled that if the parties know that a point arises in a case and they produce evidence on it, though it does not find place in the pleadings and no specific issue has been framed on it, the Court can still adjudicate thereon. None of the parties can be allowed to say that the Court cannot decide the matter because it was not raised in the pleadings. The matter is not res integra. A similar question arose before the Privy Council in Rani Chandra Kunwar v. Narpat Singh. (34 IA 27) In that case, the defendants at the time of the trial raised a contention that the plaintiff had been given away in adoption and was, therefore, not entitled to inherit. The plea was neither taken in the written statement nor an issue had been framed thereon. The contention was raised before the Privy Council by the plaintiff that in view of the pleadings, the question of adoption could not be gone into. It was held by Lord Atkinson that as both the parties had gone to trial on the question of adoption and as the plaintiff had not been taken by surprise, the plea as to adoption was open to the defendants. The objection was consequently overruled. The view of the Privy Council was followed by the Supreme Court in Nagabai Ammal vs.B Shama Rao, AIR 1956 SC 593. In that case, no specific plea that the sale in favour of the defendants was affected by the doctrine of lis pendens was taken in the plaint and no CR No. 8212 of 2010 -3- specific issue had been framed on the question. However the defendants went to trial with full knowledge that the question of lis pendens was in issue, had ample opportunity to adduce their evidence thereon and fully availed themselves of the same. Venkatarama Avvar, J, speaking for the Court, observed that the principle that the evidence lead on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties, has no application to a case where the parties go to trial with the knowledge that a particular question is in issue, though no specific issue has been framed thereon and adduce evidence relating thereto. The absence of a specific pleading on the question is a mere irregularity which causes no prejudice to the defendant. In view of the above, I do not find any patent illegality or irregularity in the orders passed by the learned first Appellate Court on 6.12.2010 which may warrant any interference in the revisional jurisdiction of this Court. Dismissed. (HEMANT GUPTA) JUDGE 17.12.2010 preeti