JUDGMENT
Dinesh Maheshwari, J.
1. This writ petition by the defendant-petitioner is directed against the order dated 20.11.2007 (Annex.6) passed by the learned Additional District Judge (Fast Track) No. 2 Jodhpur during the course of final hearing of the money recovery suit as filed by the plaintiff-respondent.
2. Shorn of unnecessary details, for the purpose of this writ petition suffice is to notice the background facts and aspects that the suit in question has been filed by the plaintiff- respondent for recovery of Rs. 25,77,025/-, said to be the amount due in the defendant towards credit sales. The defendant-petitioner has put the suit to contention on various grounds including the question on the quality of goods supplied. The suit was put to trial after framing of issues by the learned Trial Court; and the relevant issue No. 1 reads as under:
01- D;k oknh dh vksj ls okn fof/k vuqlkj izkf/kd`r O;fDr }kjk izLrqr fd;k x;k gS \ oknh^
3. It appears that after framing of issues on 23.10.2002, an application was moved by the defendant on 08.05.2003 for amendment of issues that came to be rejected by the learned Trial Court on 12.03.2004; however, another application for amendment of the issues as moved by the defendant on 20.04.2005 was allowed on 27.04.2005 with framing of an additional issue No. 6A. It further appears that the parties have already adduced their oral and documentary evidence and the matter was being finally heard by the learned Trial Court when some arguments were advanced on behalf of the defendant that the plaintiff was not a Company registered under the Companies Act, 1956 and hence the suit was not maintainable.
4. On 03.08.2007, an application (Annex.4) was moved on behalf of the plaintiff-respondent purportedly with reference to Order XIV Rule 1 read with Section 151 CPC with the submissions that the defendant in its written statement has stated want of knowledge about registration of the plaintiff-Company and about its registered office as stated in the plaint; and has stated that the plaintiff ought to prove that it was a body corporate under the Companies Act and its office was situated at the place mentioned in paragraph-1 of the plaint. The plaintiff pointed out that the issue framed in the case was only on the question as to whether the suit was not filed by an authorised person; and the plaintiff also pointed out that various applications were moved by the defendant in the past for amendment of issues but no such issue regarding registration of the plaintiff-Company was ever suggested by the defendant. According to the plaintiff, the plea in relation to its registration has been abandoned by the defendant and never any issue was suggested in that regard. The plaintiff stated the grievance that on 25th, 26th and 30th July, the counsel for the defendant argued only on the point if the plaintiff was not a Company registered under the Companies Act, 1956; that though an objection was raised on behalf of the plaintiff at the very commencement of the arguments that no such issue was framed in the matter and according to the legal principles, the plea in that regard stood abandoned by the defendant but, despite objection, the counsel for the defendant insisted to continue with such submission; although, according to the plaintiff, the Trial Court cannot go into the question without there being a specific issue on the point. The plaintiff, therefore, made the prayer to the learned Trial Court that no arguments be heard in relation to the plea already abandoned; and in the alternative, if the Court considered it proper to frame issue suo motu, then appropriate order be passed according to the settled legal principles.
5. The application aforesaid was opposed by the defendant-petitioner with written arguments (Annex.5) that the plaintiff was not entitled to move any such application under Order XIV Rule 1 CPC and the prayer as made in the application was not covered under such provisions. While dilating on the aspects that only a ”person” could file and maintain a suit; and legal existence of a person is required to be shown; and for a body corporate, its juristic personality was required to be stated else no suit was maintainable, the petitioner contended that no separate issue was required to be framed and it was for the Court to consider whether the person claiming the relief was a legal person or not; and even when the defendant remains ex parte, the plaintiff is not absolved of the liability to establish his legal status.
6. The learned Trial Court has proceeded to dispose of the aforesaid application moved by the plaintiff by its order dated 20.11.2007 (Annex.6) while observing that an important question has arisen as to whether a party could make submissions at the time of final arguments on a point on which no specific issue had been framed. According to the learned Trial Court,-
4- bl izdj.k esa vR;Ur lw{e fdUrq egRoiw.kZ iz’u ;g mRiUu gqvk gS fd D;k fdlh flfoy okn ds fopkj.k ds lekiu ij cgl vafre ds le; ij dksbZ i{k ,sls fdlh fcUnq ij cgl dj ldrk] ftlds ckjs esa dksbZ fofufnZ”V fook|d fojfpr ugh gq, gksa \^
7. The learned Trial Court has, thereafter, considered the submissions of the parties and observed that a strange situation has arisen at the commencement of final arguments before the Court that on behalf of the defendant, argument was raised that plaintiff was an unregistered Company and, therefore, suit was not maintainable whereas learned Counsel for the plaintiff immediately protested with the contention that no issue having been framed, the defendant could not argue in that regard. The learned Trial Court has observed that decision of the Civil Court is required to be rendered on the issues framed; that issues could be amended under Order XIV Rule 5 CPC at any stage before delivering the judgment; that parties to the suit cannot argue beyond the pleadings, issues and evidence; that the dispute gets confined to the issues whereupon the evidence is led and the Court pronounces judgment; and, if any party feels aggrieved of framing of issues, he could apply for amendment of the issues or addition of issues but cannot argue in the absence of issues. Thereafter, the learned Trial Court has proceeded to pass final order that the application as moved by the plaintiff stands disposed of in the manner that both the parties would address arguments within the limits of the issues but if any party wanted amendment in the framed issues, he would be free to move application in accordance with law.
8. Paragraphs-8, 9 and 10 of the impugned order read as under:
8- gLrxr ekeys esa vafre cgl izkjaHk gksrs gh U;k;ky; ds le{k ,d fofp= fLFkfr mRiUu gks xbZ] tks ;g gS fd lq;ksX; vf/koDrk izfroknh i{k }kjk ;g cgl dh xbZ fd oknh dEiuh vjftLVªhd`r gS] blfy, okn isk”k.kh; ugh gS] tcfd lq;ksX; vf/koDrk oknh us rR{k.k bldk fojks/k djrs gq, rdZ fn;k fd bl ckcr fook|d fojfpr ugh gqvk gS] blfy, izfroknh i{k cgl ugh dj ldrk A
9- flfoy fof/k ‘kkL= ds vuqlkj U;k;ky; flfoy okn dk fu.kZ; fook|dks ij gh nsrk gS rFkk vkns’k 14 fu;e 5 fl-iz-la- ds vuqlkj fook|dksa es la’kks/ku fu.kZ; lqukus ds iwoZ fdlh Hkh izde ij fd;k tk ldrk gSA tgkWa rd cgl dk iz’u gS okn ds i{kdkj vfHkokpu] fook|d o lk{; ls ijs tk dj dksbZ cgl ugh dj ldrs A dksbZ Hkh i{k fook|dks ls ijs tk dj cgl ugh dj ldrk A fook|d fojpuk dk izHkko ;g gksrk gS fd i{kdkjks dk fookn fook|dks rd lhfer gksrk gS rFkk bUgh ij lk{; nh tk ldrh gS vkSj U;k;ky; bUgh ij viuk fu.kZ; nsrk gS A ;fn dksbZ i{k fook|d fojpuk ls O;fFkr eglwl djrk gS rks fook|dksa esa la’kks/ku ;k vU; fook|d tksM+us gsrq izLrkfor dj ldrk gS] ysfdu fook|dks ds vHkko esa dksbZ i{k cgl ugh dj ldrk gS A blh ifjis{; esa vkosnu i= oknh fuLrkj.k ;ksX; gS A
vkns’k
10- vr% vkosnu i= oknh ds vUrZxr vkns’k 14 fu;e 1 lifBr /kkjk 151 fl-iz-la- dks bl izdkj fuLrkfjr fd;k tkrk gS fd okn ds nksuks i{kdkj orZeku fook|dks dh lhek es jgrs gq, gh viuh cgl djs] ysfdu ;gkWa ;g Li”V fd;k tkrk gS fd ;fn dksbZ i{kdkj fojfpr fook|dksa esa la’kks/ku pkgrk gS rks blds fy, fof/kuqlkj vkosnu i= izLrqr djus dks Lora= gksxk A
9. It is contended on behalf of the defendant-petitioner that by the order aforesaid, the right of the petitioner to make submissions in accordance with law has virtually been curtailed. On the other hand, it is submitted on behalf of the plaintiff-respondent that the application (Annex.4) was necessitated when unnecessary lengthy arguments were advanced on the point that was not the subject of the issues; and the learned Trial Court has rightly passed the order impugned.
10. The submissions as made in this writ petition by the learned Counsel for the parties on both the sides are not convincing and rather this Court is constrained to express its dissatisfaction over and disapproval of the procedure adopted by the learned Trial Court in passing a separate order on an application moved by the plaintiff seeking curtailment of arguments. Per Section 33 of the Code of Civil Procedure, the Court, after the case has been heard, is to pronounce judgment, and on such judgment a decree is to follow. Leading of evidence and hearing of final arguments is part and parcel of the process of hearing of the suit as per the procedure laid down by the Order XVIII of the Code of Civil Procedure. Under Rule 2 of Order XVIII, on the day fixed for the hearing of the suit or any other day to which the hearing is adjourned, the party having the right to begin is to state its case and to produce its evidence in support of the issues he is bound to prove; thereafter, the other party would state its case and produce its evidence and may then address the Court generally on the whole case; and then, the party beginning may reply generally on the whole case. Under the Scheme of Sub-rules 3-A, 3-B, 3-C and 3-D as inserted to the Rule 2 of order XVIII CPC by the Amendment Act of 2002, any party may address oral arguments and before conclusion of oral arguments, may submit with permission of the Court in a concise manner written arguments after furnishing the same to the other side; and no adjournment is to be granted for the purpose of filing written statement unless for reasons to be recorded in writing, the Court considers it necessary; and more particularly, under Sub-rule 3-D of Rule 2 of Order XVIII, the court could fix the time limit for oral arguments by either of the parties. After the case has been heard, the Court is to pronounce judgment as per the scheme of Order XX; and as per requirements of Rule 5 of Order XX, in a suit in which issues have been framed, the Court is required to state its finding or decision with reasons upon each separate issue unless the finding upon any one or more of the issues is sufficient for the decision of the suit. The decree is to follow agreeing with the judgment and bearing the date on which the judgment was pronounced.
11. The procedure as invited by the plaintiff and as adopted by the learned Trial Court in this case, of passing an order in the midst of arguments that party should address arguments within the limits of issues is neither contemplated in the scheme of the Code of Civil Procedure nor this Court is able to find any logic or justification in that regard. Assuming that a plea was being canvassed before the Trial Court by the defendant regarding which the plaintiff had objection that the same was not covered by the issues framed and has put the objection before the Trial court, all the aspects related thereto could have been taken into consideration and pronounced upon while delivering final judgment in the matter.
12. Yet and if at all, unnecessary time was being consumed by the defendant on making submissions, nothing prevented the Trial Court from regulating its proceedings including fixing the time limit for arguments.
13. Then, this Court is constrained to observe further that the impugned order is neither here nor there. Even when the learned Judge considered it appropriate to take up such unnecessary application of the plaintiff for consideration and to pass a separate order, it is rather painful to notice that even that exercise has not been taken to its logical conclusion and the order impugned does not lead to anything anywhere. Mere declaration that the party should argue within the frame of issues and any party could apply for amendment of issues is nothing but stating the requirements of law in abstract and does not lead to any definite decision on the question that was taken up for consideration by the learned Trial Court. No separate order is required to be passed by the Court that the parties are required to address arguments only on issues or that a party could move application for amendment of the issues; such order does not serve any purpose at all.
14. Learned Counsel for the respondent-plaintiff has referred to the decision in the case of State of Rajasthan v. Bundi Electric Supply Co., Ltd to submit that if plaintiff would not have raised objection, the plea would have been entertained causing prejudice to the plaintiff. Learned Counsel further cited the case of B.R.Mulani v. Dr. A.B. Aswathanarayana and Ors. AIR 1993 Karnataka 257 to submit that an abandoned plea cannot be argued upon. The submissions are hardly providing any legal basis or support to impugned order as passed by the learned Trial Court. The plaintiff had raised objections whatever were sought to be raised against the contention of the defendant and all the relevant aspects could have been taken care of while delivering final judgment in the matter; but the procedure as adopted by the learned Trial Court, if countenanced, would be of creating another stage in the trial of civil suit that is not envisaged by the scheme of the Code of Civil Procedure.
15. The submission as made by the defendant-petitioner that by the order impugned its right to make submissions have been curtailed is also not convincing. As noticed, the order as passed by the learned Trial Court does not finally lead even to a conclusion. This Court is clearly of opinion that the order impugned was not all required to be passed in the matter; and the learned Trial Court ought to have heard the arguments taking note of the pleas and objections and ought to have pronounced finally thereupon without passing a piecemeal order on one part of the objection. The impugned order cannot be sustained and is required to be set aside.
16. Having said so, this Court feels that it would be in the fitness of things that the suit in question is finally heard and decided by some other court particularly looking to the nature of impugned order as passed by the learned Trial Court and its strong disapproval as pronounced by this Court herein.
17. During the course of submissions, upon this Court expressing the proposition that the matter deserves to be transferred to another competent court and looking to its subject-matter, it would be expedient if the matter is withdrawn from the file of Court of Additional District Judge (Fast Track) No. 2, Jodhpur and is transferred to the Court of District Judge, Jodhpur either for hearing and disposal of the matter by the learned District Judge himself or for transfer to some other Court for hearing and disposal in accordance with law. Both the learned Counsel readily agreed on the proposition. Accordingly, this writ petition is allowed to the extent indicated above and in the manner that the impugned order is set aside. However, the suit in question (C.O. No. 84/2005) stands withdrawn from the Court of Additional District Judge (Fast Track) No. 2, Jodhpur and stands transferred to the Court of District Judge, Jodhpur. It is informed that next date fixed in the matter is 08.05.2008. The parties shall appear before the District Judge, Jodhpur on 08.05.2008 and shall stand noticed for the purpose through their counsel present before this Court.
18. The learned District Judge is requested to immediately take up the matter for consideration and either to set the matter for hearing on a date convenient to the Court or may consider transferring the matter to some other Court in accordance with law. Wherever the matter is taken up, it would be expected of the Court concerned to decide the same as expeditiously as possible. No costs.
19. A copy of this order be sent to the District Judge, Jodhpur immediately.