PRATYUSH KUMAR,J. - (1.) The instant application has been moved by plaintiff-appellant in Second Appeal No.187 of 2017 wherein Keshav Prasad, Suman Dixit, C.L.Dixit, Sarju and Devendra were arrayed as respondents. On 1st May, 2017, this Court while admitting second appeal, issued notices to respondents with the direction to maintain status-quo by both the parties. Further sake of clarity, the order in question is quoted here-in-below:- "Heard learned counsel for the parties. Regular Suit No. 64 of 1999 for cancellation of sale-deed dated 23.11.1998 was instituted before the trial court in the month of January, 1999. It is evident from the judgment rendered by the trial court that the suit proceedings against the defendants proceeded ex parte by order dated 18.10.2002. The trial court before rejecting the civil suit has evidently recorded the statement of the witnesses i.e. plaintiff, his wife and one of the marginal witnesses of the sale deed. The vendor Sahab Deen was kidnapped on 21.11.1998 whereafter a sale deed under duress was got executed by threatening him and this fact is also deposed by the marginal witness. It appears that a telegram was also sent by the wife of vendor Sahab Deen on 22.11.1998 but an F.I.R. came to be lodged in respect of the alleged occurrence belatedly on 28.1.2001. In the plaint filed before the tribunal, the kidnapping of the vendor is specifically stated and in the suit proceedings the evidence to this effect was also recorded before the trial court. The trial court in stead of framing issues for the purposes of appreciating the evidence rejected the civil suit merely on the ground of delay in lodging the F.I.R. The appellant preferred First Appeal under Section 96 of the Code of Civil Procedure but the first appellate court has not attached any significance to the illegality in the matter of rejection of civil suit without framing of the issues for the purposes of deciding the real dispute.
(2.) Both the courts below have thus failed to frame issue before rejecting the suit as well as the first appeal. The plaint could not be rejected merely on the ground of non-disclosure of delay in lodging F.I.R. and there was equally not any objection filed under Order 7 Rule 11 C.P.C. The second appeal thus deserves to be admitted on the following substantial question of law framed at 1, 4 and 5 in addition to 'a', which read as under :- 1. Whether the dispute can be decided without framing the issues in the case. 4. Whether the judgment can be passed without framing the issues if the matter relates to cancellation of sale deed. 5. Whether judgment can be passed without discussing the evidence and statement of the witnesses in the proceeding. a. Whether without framing of issues, evidence of witnesses can be ignored in the judgment on the mere strength of probability of a fact which even does not constitute a part of cause of action.
(3.) Issue notice.;