- (1.) Heard Mr. R.N. Sahay, learned senior counsel appearing on behalf of the petitioner and Mr. Yogesh Modi, learned counsel appearing on behalf of the respondents.
(2.) The petitioner has preferred this writ petition for setting aside the order dated 15.05.2015 passed by the Civil Judge (Sr. Division)-III, Giridih in Title Suit No.86 of 2004 whereby he has been pleased to allow the defendant's petition dated 09.04.2015 for addition of two more issues.
(3.) Mr. R.N. Sahay, learned senior counsel appearing on behalf of the petitioner submits that the issues which has been framed by the impugned order is not the subject matter of the suit. He further submits that the suit was filed for specific performance of contract which is between two contesting parties i.e., plaintiff and defendants. He further submits that in view of the Order XIV Rule 1 sub-Rule (2) of C.P.C. it is the requirement of the law that material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. By way of referring to the averments of the plaint as well as the written statement filed by the respondents/defendants he submits that it is clear that the issues which were framed by the impugned order are not required to be framed. He further submits that Order XIV Rule 5 of C.P.C. is there but it is subject to the Order XIV Rule of C.RC. He further submits by way of one petition which is not the part of the pleading the issue in question has been framed by the court below which is not in accordance with law. Mr. R.N. Sahay, learned senior counsel for the petitioner relied upon a catena of decision with regard to the Order XIV Rule 5 of C.RC. but he submits that suffice to consider the judgment passed by the Hon'ble Patna High Court in the case of Julumdhari Rai and Ors. Vrs. Debi Rai and Ors. reported in 1964 SCC Online Pat 129, paragraph 18 which reads herein below: 18. In the case of Abdul Hosseinv. Turner, ILR 11 Bom 620 (PC) they also held that where one kind of fraud is charged, another kind of fraud cannot be substituted for it. The importance of stating the material facts in the pleading in connection with fraud that one may plead cannot be gainsaid, as the other party will be required to meet such allegation. In the present case it was necessary for the contesting defendants to say in the written statement that small parcels of land in the villages of Warispur and Dayalpur had been fraudulently included in the deeds of settlement without any intention of transferring title in the same to the plaintiffs, with a view to misleading the sub-registrar at Hajipur to assume jurisdiction to register those documents. They did not make any such statement in any of the written statements. The set of issues that were framed on the pleadings by the Court on the 17th of December 1952 did not have any reference to the deeds of settlement being hit by Section 28 of the Indian Registration Act. It is, however, seen that five years thereafter, on the 28th of March, 1957, when the evidence commenced in the trial, that was added to issue No. 6 on recasting. Strictly speaking, this was wrong. Issues arise only on the pleadings and an issue involving the allegation of a fraud, be it of what nature, should not be allowed to be raised unless there were materials for that in the pleadings. In the recast issue No. 6 the following was included. "Are these documents hit by Section 28 of the Indian Registration Act?'" ;