GOPICHAND Vs. GOVERNMENT OF RAJASTHAN
LAWS(RAJ)-1952-1-11
HIGH COURT OF RAJASTHAN
Decided on January 10,1952

GOPICHAND Appellant
VERSUS
GOVERNMENT OF RAJASTHAN Respondents

JUDGEMENT

Sharma, J. - (1.)THIS ia a plaintiff's application for revising the order of the Civil Judge, Jaipur City framing the additional issue and giving an opportunity to both the parties to produce evidence upon it. In his suit the plaintiff alleged that a sum of Rs. 7686/9/- which was being demanded from him on account of excise duty on tobacco was not chargeable from him. The defendant alleged that the duty was chargeable. Several issues were framed in the case and parties produced their evidence which was concluded on the 12th January, 1951-The case was partly argued on the 17th January, 1951 and at that time it was realised by the court that the following issues were necessary for the decision of the case and therefore, it framed the said issue and allowed both the parties to produce evidence thereon purporting to exercise the powers conferred by Order 14 Rule 5 of the Civil Procedure Code "whether present stock of tobacco shown in the declaration form by the plaintiff was not of Jaipur produce, or manufacture and if so to what extent. " The plaintiff comes in revision complaining that the lower court ought not to have framed this issue and at any rate ought not to have allowed parties to produce evidence thereon. Learned counsel for the applicant has argued that the question whether the stock of tobacco in question was or was not of Jaipur produce or manufacture was implied in his averment in para 5 of the plaint where he has said that no such tobacco produced in Jaipur was liable to duty and the defendant ought to have known that the plaintiff's case was that the said stock was not of Jaipur produce. The defendant did not take any objection that the tobacco was produced in Jaipur. In his cross-examination he put certain questions to the plaintiff on the point whether the tobacco was produced in Jaipur or was imported from outside and he therefore, knew fully well that this question was material in the case. He however, produced no evidence on this point. If he found at the time of arguments that he had made a mistake in alleging and proving that the tobacco was the produce of Jaipur he cannot claim after the evidence was concluded that an additional issue be struck and he be given an opportunity to adduce evidence.
(2.)ON behalf of the opposite party it has been argued that it was the plaintiff's duty to say clearly in his plaint that the tobacco in question was not a Jaipur produce. This was the most material question in the case. It could not be implied from the averment of the plaintiff in para 5 of the plaint which is merely a statement of law. Without deciding this question the case could not be decided. The lower court therefore, acted with perfect justification when it struck a cleat issue on this point and gave both the parties opportunity to produce their evidence. It was argued that the lower court has not usurped any jurisdiction not vested in it nor acted illegally or with material irregularity in the exercise of its jurisdiction. The revision was therefore, not permissible.
I have considered the arguments of both the learned counsels. In order to interfere in revision with the order of the lower court the applicant is to satisfy the court that the lower court exercised a jurisdiction vested in it or failed to exercise the jurisdiction vested therein or committed any illegality or material irregularity in the exercise of its jurisdiction. Rule 5 of Order 14 Civil Procedure Code empowers the court at any time before passing the decree to amend an issue or frame additional issues on such terms as it thinks fit. In exercising its discretion given by this rule, the court framed the issue in question and laid the terms that both the parties shall be free to produce evidence on this issue. I am not concerned to say in this proceeding whether the discretion was rightly or wrongly exercised and whether if this court were sitting as first court it would have exercised the discretion on the lines the lower court has done. It appears that the court after the judicial consideration came to the conclusion that in the interest of justice it was necessary that additional issue should be framed and that both the parties should be given opportunity to produce evidence thereon. It cannot be said that in doing so the court either exercised the jurisdiction not vested in it or acted illegally or with material irregularity in the exercise of its jurisdiction. Learned counsel for the applicant himself did not raise any serious objection to the framing of the issue in question at the time of the arguments before me but laid special stress upon the fact that the lower court acted illegally in giving an opportunity to both the parties to adduce evidence on the issue. It was but fair that after having struck the additional issue the court should have given opportunity to both the parties to produce evidence. It cannot be said that the court either acted capriciously or arbitrarily in making such an order. The fact that the issue was struck and parties allowed to produce their evidence after both the parties had closed their evidence also does not amount to an illegality or material irregularity in the exercise of the court's jurisdiction. Rule 5 of Order 14 empowers the court to amend the issue and frame additional issue on such terms as it thinks fit at any time before passing the decree. The fact therefore, that the issue was framed and parties allowed opportunity to produce their evidence after the close of evidence does not invalidate the lower court's order. In Shamu Pattar vs. Abdul Kadir Ravuthan and others (2) Abdul Rajah Sahib and others (XXXIX Indian Appeals page 218) an additional issue was framed after the close of the arguments. Their Lord ships of the Privy Council held that the court could at any time before passing the decree amend the issue or frame additional issue and therefore the order framing the issue after the close of arguments was neither illegal nor improper. I do not find that the learned counsel for the applicant has been able to make a case for interference in revision.

The application is dismissed with costs to the contesting respondent. .



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