- (1.) The petitioners are aggrieved by the order dated 27.3.2014 passed by Addl. District & Sessions Judge, Sambhar Lake Camp Dudu, whereby the learned Judge has dismissed an application under Order 14, Rule 5 CPC filed by the petitioners, and has refused to frame an additional issue.
(2.) The learned counsel for the petitioners has contended that during pendency of the suit, Smt. Manphooli Devi (respondent No.5 before this Court) had sold the property in dispute to another person. By order dated 28.9.2013, the petitioners were permitted to amend their plaint and to bring the subsequent development of the case on record. Once the subsequent development was brought on record and an amendment was permitted, it was imperative to frame an additional issue. Secondly, since one of the prayers in the suit was that any subsequent sale should be declared as null and void, therefore, it was imperative to frame an additional issue as suggested by the petitioners. Therefore, the learned Judge ought to have allowed the amendment.
(3.) On the other hand Mr. Mishra, the learned counsel for the respondents, has contended that even after the amendment was carried out in the plaint, respondent No.5 did not file any counter to the said fact. Hence, implicitly she has admitted the sale. Once the sale is admitted, there is no dispute between the parties. Hence, an issue need not be framed. Moreover, the learned Judge has also observed that even without framing an issue, but considering the existence of Section 52 of the Transfer of Property Act, the Court is duty bound to adjudicate upon the impact of the sale during pendency of a suit. Thus, there is nothing illegal about the rejection of the application by the learned Judge. The learned counsel has thus supported the impugned order.;