Civil Revision No.2281 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2281 of 2011(O&M) Date of Decision: April 5, 2011 Ram Lal .....Petitioner v. Vijay Kumar .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.R.S.Chauhan, Advocate for the petitioner. ...... RAM CHAND GUPTA, J.(Oral) C.M.No.9267-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.2281 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 5.3.2011, Annexure P5, passed by learned Additional Civil Judge, Junior Division, Abohar, in civil suit filed by petitioner-plaintiff against respondent-defendant, vide which application filed by petitioner-plaintiff under Order XIV Rule 5 of the Code of Civil Procedure (hereinafter to be referred as `the Code') for framing the additional issue has been dismissed. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court. Brief facts relevant for the decision of present revision petition are that a suit for declaration was filed by present petitioner-plaintiff to the effect that he is owner in possession of the land in dispute, duly described in the heading of the plaint and that judgment and decree dated 17.12.1965 passed in Civil Suit No.571-1/65 titled as `Jiwni Devi v. Surji Devi' in favour of defendant no.1, vide which defendant no.1 had been declared owner in possession of the land in dispute and subsequent alienation of half Civil Revision No.2281 of 2011(O&M) -2- share of the property in favour of defendant no.2 by defendant no.1 and subsequent mutation on the basis of the same are illegal and void and not binding upon the rights of the plaintiff with consequential relief of permanent injunction restraining respondent-defendant from alienating the suit property and further from dispossessing the petitioner-plaintiff from the suit property. Suit was contested by respondent-defendant, inter alia, on the ground that petitioner-plaintiff is having no locus standi to challenge the said decree dated 17.12.1965, after lapse of more than 30 years. Plea has also been taken that Smt.Surji Devi, widow of Aidan, expired in the year 1976 and she had never challenged the said decree during her life-time. It has also been stated that defendant no.1 has been continuing in possession of the same for the last more than 50 years and that plaintiff never remained in possession of the same within a period of 12 years from the date of filing of the suit. On the pleadings of the parties, following issues were framed by learned trial Court:- “1. Whether the plaintiff is owner in possession of the suit land? OPP 2. Whether the decree dated 17.12.1965 in favour of the defendant no.1 is illegal, null and void, if so its effect? OPP 3. Whether the plaintiff is entitled to declaration injunction prayed for? OPP 4. Whether the suit is within limitation? OPP 5. Whether the defendant no.1 is in possession of the suit land for the last more than 30 years, if so, its effect? OPD 6. Relief.” Evidence was adduced by both the parties. When the case was fixed for arguments, present application was filed by petitioner-plaintiff under Order XIV Rule 5 of the Code for framing additional issue on the plea that respondent-defendant had also taken the plea that they have become owner by adverse possession and, however, no such issue was framed. The application was contested by respondent-defendant that he did not claim any such issue. The application was dismissed by learned trial Court by Civil Revision No.2281 of 2011(O&M) -3- observing as under:- “6.Perusal of file reveals that on 16.01.1998 the then Civil Judge (Jr.Division), Abohar, framed the issues from the pleadings of the parties but the proposed issue was not pressed by the learned counsel for the plaintiff at the relevant stage when the issues were framed. 7. The present case pertains to the year 1997 and the evidence of the plaintiff was closed by order on 4.8.2010 and, thereafter, the defendants closed their evidence on 13.10.2010 and since then, case remained pending for rebuttal evidence and the plaintiff has availed several opportunities to conclude rebuttal evidence and now the instant application has been filed. 8. The plea of adverse possession has been taken by defendant no.2 in the written statement but the application for additional issue on adverse possession has been filed by the plaintiff. Had this application been filed by the defendant no.2, the position could have been different. The plaintiff cannot insist the Court that issue on the objections taken by the defendants be framed. It was for defendant no.2 to press that issue on adverse possession should be framed as objection of adverse possession has been taken by plaintiff but admittedly the said defendant no.2 has opposed the application to frame the additional issue. 9. The present case pertains to the year 1997 and both the parties have already led their evidence and plaintiff has also availed several opportunities to conclude his rebuttal evidence when the instant application was filed and during the aforesaid long period of about 13 years. The proceed issue was never pressed by the plaintiff well knowing the pleadings. Moreover, non framing of this issue cannot be said to have caused any prejudice to the plaintiff.” Hence, in view of these facts, when no issue regarding adverse possession being claimed by respondent-defendant, merely on the ground that an alternative plea to this effect was also taken by respondent- Civil Revision No.2281 of 2011(O&M) -4- defendant, it cannot be said that petitioner-plaintiff is having any right to make the prayer for framing of additional issue at the stage of final arguments of the case. The application filed by the petitioner-plaintiff does not seem to be a bona fide one. The present suit was filed in the year 1997 and the present application has been filed after about 14 years of filing of the suit, when the case was at the stage of arguments. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 5.4.2011 (Ram Chand Gupta) meenu Judge