Case Note & Summary
The petitioner, Shahnawazkhan, filed a suit for specific performance of an agreement of sale dated 10.11.2006 against the respondents. The consideration was Rs.37 lacs, with Rs.5 lacs paid as earnest money. The petitioner alleged that respondent No.1 sold the land to respondents 2 and 3, necessitating the suit. Respondent No.1 contended that the Rs.5 lacs was a loan and the agreement was a security document. The trial court framed issues on 7.10.2008, placing the burden on the plaintiff for issues 1, 2, 4, and 5, and on defendant No.1 for issue No.3 (whether the agreement was a security for a loan). After the plaintiff's evidence and cross-examination, the plaintiff filed an application (Exh.49) to alter the issues, arguing that the burden of proving the loan transaction should be on the defendants. The trial court rejected the application, stating that the issues were already framed and the plaintiff had led evidence. The High Court held that under Order 14 Rule 5 CPC, the court can alter issues at any stage before judgment if necessary for determining the real controversy. The trial court's refusal was set aside, and it was directed to reconsider the application and pass appropriate orders, as the framing of issues is not final and can be altered to ensure justice.
Headnote
A) Civil Procedure - Framing of Issues - Alteration of Issues - Order 14 Rule 5 CPC - The court held that framing of issues is not final and can be altered at any stage before judgment if necessary for determining the real controversy - The trial court's refusal to alter issues was set aside as it failed to exercise jurisdiction vested in it (Paras 5-7). B) Specific Performance - Burden of Proof - Loan Transaction Defence - In a suit for specific performance, where the defendant contends that the agreement of sale was a security for a loan, the burden of proving such defence lies on the defendant - The trial court had initially placed the burden on the defendant in issue No.3, but later refused to alter other issues to reflect the correct burden - The High Court directed the trial court to reconsider the application and pass appropriate orders (Paras 4-8).
Issue of Consideration
Whether the trial court was justified in refusing to alter the issues and shift the burden of proof from the plaintiff to the defendant regarding the nature of the transaction (sale vs. loan) in a suit for specific performance.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 16.11.2009, and directed the trial court to reconsider the application (Exh.49) and pass appropriate orders in accordance with law, keeping in view the observations made in the judgment.
Law Points
- Framing of issues is not final
- can be altered at any stage before judgment
- Order 14 Rule 5 CPC
- burden of proof
- specific performance
- loan transaction defence
