Whether court should frame additional issues if those issues are included in already framed issues?

Trial court has observed that present suit is a simple suit for injunction filed by the plaintiff against defendant/petitioner wherein relevant issues have already been framed, which are Issues No. 1 and 2. Additional issues, which are required to be framed as per submissions of defendant, have already been included in Issues No. 1 and 2. Trial court has further observed that no specific issue has been suggested by the defendant in the application under Order 14 Rule 5 CPC.

7. Reasons assigned by the trial court for rejecting the application of the petitioner under Order 14 Rule 5 CPC appears to be absolutely legal and justified and no interference in the same is called for.

RAJASTHAN HIGH COURT

(Before Narendra Kumar Jain, J.)

Sheikhul Mashsaeikh Dewan Syed Zainul Abedin Ali Khan

v.

The Dargah Committee Ajmer & Another.

S.B. Civil Writ Petition No. 15676/2009

Decided on December 16, 2010

Citation: 2010 SCC OnLine Raj 4476

BY THE COURT:

Heard learned counsel for the petitioner.

2. Defendant-petitioner has preferred this writ petition challenging impugned orders dated 16.01.2009 and 18.05.2009.

3. Vide order dated 16.01.2009 trial court rejected application of the petitioner under Order 14 Rule 5 CPC to frame additional issues. Thereafter the petitioner filed an application for review of order dated 16.01.2009, which was dismissed by the trial court vide order dated 18.05.2009.

4. Submission of learned counsel for the petitioner is that trial court committed an illegality in rejecting the application of the petitioner under Order 14 Rule 5 CPC, as additional issues ought to have been framed in the present case.

5. I have considered the submissions of learned counsel for the petitioner in the light of reasons assigned by the trial court for rejecting application under Order 14 Rule 5 CPC as well as review petition.

6. Trial court has observed that present suit is a simple suit for injunction filed by the plaintiff against defendant/petitioner wherein relevant issues have already been framed, which are Issues No. 1 and 2. Additional issues, which are required to be framed as per submissions of defendant, have already been included in Issues No. 1 and 2. Trial court has further observed that no specific issue has been suggested by the defendant in the application under Order 14 Rule 5 CPC.

7. Reasons assigned by the trial court for rejecting the application of the petitioner under Order 14 Rule 5 CPC appears to be absolutely legal and justified and no interference in the same is called for.

8. The Hon'ble Supreme Court in Babhutmal Raichand Oswal v. Laxmibai R. Tarte (AIR 1975 Supreme Court 1297), held the High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts. The High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate court or tribunal. It's function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it.

9. The Hon'ble Supreme Court in Mohd. Yunus v. Mohd. Mustaqim (AIR 1984 Supreme Court 38), held that in exercising the supervisory power under Article 227, the High Court does not act as an appellate court or Tribunal.

10. In view of above discussions, I do not find any merit in this writ petition and the same is, accordingly, dismissed in limine.