C.R.No.3785 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3785 of 2011 Date of decision: 14.11.2011 Paramjit Kaur ... Petitioner Versus Surinder Singh ... Respondent CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. Rakesh Chopra, Advocate for the petitioner. Mr. P.S.Punia, Advocate for the respondent. Ajay Kumar Mittal,J. 1. The prayer for framing of additional issue relating to Will executed by Chhajju Singh, father of the parties having been declined by the trial Court vide order dated 22.2.2011, Annexure P.1, has prompted the plaintiff-petitioner to approach this Court by way of present revision petition impugning the said order. 2. Brief facts may be noticed. The plaintiff-petitioner filed a suit on 30.8.2006 for permanent injunction restraining the defendant-respondent from interfering into her peaceful possession and alienating more than his share out of the suit land. The suit was contested by the respondent by filing written statement. Application for amendment of the written statement was filed by the respondent on 28.2.2008. The respondent pleaded unregistered Will dated 1 C.R.No.3785 of 2011 3.12.2005 alleged to be executed by the father of the parties in his favour. He claimed ownership as well as possession over the suit property in view of the alleged Will. Evidence was led by both the parties. Thereafter, the petitioner filed an application to frame additional issue on the Will in question. The trial court after hearing learned counsel for the parties dismissed the said application vide order dated 22.2.2011 impugned herein. Hence this revision petition. 3. Learned counsel for the petitioner submitted that as per pleadings of the parties, the defendant had taken a specific plea that there was a Will dated 3.12.2005 executed by Chhajju Singh in his favour which fact was denied in the replication on the basis of provisions of Order 14 Rules 1, 2, 3 and 5 of the Code of Civil Procedure (in short, “the Code”). The issue with regard to validity of the Will arose for determination in the suit. The trial Court having failed to formulate the said issue had not exercised jurisdiction vested in it by law. Learned counsel for the petitioner relied upon judgment of the Hon’ble Supreme Court in Corporation of the City of Bangalore v. M.Papaiah and another, AIR 1989 SC 1809, judgments of this Court in Rajinder Tandon v. Thomas Nasir Masih, 1999(1) Civil Court Cases 702, Madan Mohan v. Arun Kumar and others, 1984(1) Rent Law Reporter 492 and Gurcharan Singh v. Sadhu Ram and others, 1995(1) Civil Court Cases 194 in support of his submissions. 4. Controverting the aforesaid submissions, learned counsel for the respondent besides supporting the impugned order submitted that though on the pleadings of the parties, dispute did arise regarding validity of the Will dated 3.12.2005 but the evidence was led in 2 C.R.No.3785 of 2011 support by the parties knowing fully well the respective contentions and in such a situation, in view of Apex Court judgment in Kannan (dead) by Lrs. and others v. V.S.Pandurangam (dead) by Lrs. and others, 2008(1) Civil Court Cases 220, there was no need to formulate additional issue as the entire attempt of the petitioner was to seek opportunity to lead evidence to fill-in lacuna which was left in the evidence led by her. 5. After hearing learned counsel for the parties and perusing the record, I do not find any merit in the revision petition. 6. On a query being put to the learned counsel for the petitioner that in case an issue as claimed by the petitioner is framed, then what other evidence was required to be led by the petitioner in respect of Will dated 3.11.2005, he was unable to give any answer except to urge that additional issue was required to be framed on the pleadings of the parties. No doubt, ordinarily, the Court is required to frame issues which may arise on the basis of pleadings of the parties but in the present case, civil suit having been filed in the year 2006 in which both the sides had concluded their respective evidence and knew about the case of each other very well while leading the evidence, it could not be said that the application which was filed at the belated stage of hearing of arguments was a bonafide application. The judgments relied upon by learned counsel for the petitioner, thus, do not advance the case of the petitioner. 7. The Hon’ble Surpeme Court in Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884 had recorded that where the parties went to trial knowing fully the rival case and had produced the evidence not only in support of their pleas 3 C.R.No.3785 of 2011 but also controverting those of the other side and the evidence which had been led in the case was sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer, it could not be held that the absence of an issue was fatal to the case. 8. Following the aforesaid judgment, the Apex Court in Kannan’s case (supra) in paras 11 and 12 had noticed as under:- “11. By a series of decisions of this court it has been settled that omission to frame an issue as required under Order XIV Rule 1 CPC would not vitiate the trial in a suit where the parties went to trial fully knowing the rival case and led evidence in support of their respective contentions and to refute the contentions of the other side vide Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884. 12. In Sayeda Akhtar v. Abdul Ahad, AIR 2003 SC 2985, it was held by this Court that even if no specific issue has been framed but if the parties were aware of that issue and have led evidence on it, the Appellate Court should not interfere with the findings of the trial Court. A similar view was taken in Kali Prasad Agarwalla and others v. M/s Bharat Coking Coal Limited and others, 1989 Supp (1) SCC 628 (vide paragraph 19) and in Shaikh Mahammad Umarsaheb v. Kadalaskar Hasham Karimsab and others AIR 1970 SC 61 (vide paragraph 9) as well as in several other decisions”. 9. Nothing could be shown which could impel this Court to infer that the order impugned herein stands vitiated by law. 10. No ground is made out to interfere with the impugned order dated 22.2.2011 passed by the trial Court. Accordingly, the revision petition is dismissed. November 14, 2011 (Ajay Kumar Mittal) ‘gs’ Judge 4