JUDGMENT
(1) ADMIT. Heard finally.
(2) This is an appeal filed by the plaintiff against an order of the learned Single Judge who has rejected the plaintiff’s application under orders 4 and 5 C.P.C. for striking out an issue.
(3) The Plaintiff has filed a suit for specific performance. One of the pleas taken by one of the defendants is that the suit filed by the plaintiff is barred by law on that plea an issue has been framed. “WHETHER the suit is barred by Law?”. The issue were framed in the presence of-the parties. The order dated 9.11.1994 of the counsel, framing the issues begins by stating- “On the pleadings of the parties the following issues are framed’ Issue No. 1 is treated to be a preliminary issue. For arguments as preliminary issue to come up on…”
(4) Then followed addition and denial of documents when the ease was posted for hearing on the preliminary issue, a few adjournments were taken. On 14.2.1996, it appears that the preliminary issue was taken up or hearing and then it was submitted by the learned counsel for the plaintiff that the law by which the suit is barred should have been specifically mentioned either in the issues or in written statement. On that observation the learned counsel for the defendant No. 4 stated that the suit was barred by section 9 of Fera r/w Section 24 of the Contract Act. The learned counsel for the defendants 1 to 3 stated that the suit was barred by section 269 Uc of the IT Act.
(5) These contentions have been noted in. the order. The court appointed 9.4.96 for hearing. At this stage plaintiff moved an application for deleting the issue submitting that the issue did not arise out of the pleadings.
(6) As already noticed the application has been rejected and the plaintiff has came up in appeal. It is submitted that the counsel for the plaintiff. That the pleadings in the written statement should have been specific so as counsel clearly state the law by which the suit was contended to be barred and it is only on such plea being specifically raised in the W..S. that the plea could have framed a subject matter of an issue. In the absence of specific pleadings issue even if framed was liable to be struck off.
(7) Having heard the learned counsel for the parties, we are of the opinion that the appeal is without any merit and deserved to be dismissed. It is true that under order 14 rule 1 (1) Issues are to be framed on material proposition of fact or law affirmed by one party and denied by the other Rule 3 of order 14 Civil Procedure Code speaks of the material from which issues may be framed. One of such materials is allegation made on oath by the parties or by any persons present on their behalf or made by the pleaders of such parties.
(8) In Shamu Palter vs. Abdul Kadir & Others S39 Indian Appeals 218, their Lordships have held “Even had there been no such express provision in the code, their Lordships consider ever court trying civil causes has inherent jurisdiction as to take cognizance of question which out at that root ‘of the subject matter of controversy between the parties”. In Azam Khan vs. S.Sattar A.78 Ad 443 it has been held. “The court could raise an issue of law not put forward in the pleadings”.
(9) Thus there is ample authority available for the proposition that an issue of law framed by a civil court need not necessity be confined to the material available out of the pleading.
(10) In the absence of any special plea having been raised in the Ws, the only grievance which the plaintiff could have raised was that he was prejudiced in meeting the case made out at the bar. In the case at hand the question of that prejudiced does not arise. The exact nature of the plea raised by the defendant has been made clear by them during the course of hearing behalf the court on 14.2.96. How the defendants proposed to argue on issue No. 1 is made clear by the proceedings held behalf the court on 14.2.96. The plaintiff can’t now complain of any prejudice the he knows the case which he was to meet to far as issue No. 1 is concerned.
(11) Moreover, issues were framed in the presence of the partics. On the date on which issues were framed the plaintiff did not object to issue No. 1 being framed in the manner in which it had been done. We are therefore of the opinion that the learned single judge did not err in rejecting the application under order 14 rule 5 Civil Procedure Code filed by the plaintiff.
(12) Appeal is without any merit and is dismissed.
(13) Before parting we may place on record that the learned counsel for the respondents did raise an objection to the maintainability of appeal submitting that the order impugned did not amount to “judgment” within the meaning of section 10 of Delhi High Court Act we are not expressing any opinion thereon as all the parties having made appearance the appeal has been heard and disposed of on merits.