EAST POINT EDUCATION SOCIETY AND ANR vs MOHINDER SINGH AND ORS

2024-08-21 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order: 21st August, 2024.
+ C.R.P. 173/2024 & CM APPL. 33665/2024
EAST POINT EDUCATION SOCIETY AND ANR …..Petitioners
Through: Mr. Puneet Mittal, Senior Advocate with Mr. Rupendra Pratap Singh and Ms. Sakshi Mendiratta, Advocates
versus

MOHINDER SINGH AND ORS …..Respondents
Through: Mr. Annirudh Sharma and Ms. Sonali Sharma, Advocates
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
1. The instant civil revision petition under Section 115 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter Code) has been filed on behalf of the petitioners herein seeking setting aside of the impugned order dated 27th April, 2024 passed by the learned ADJ-05, South-East District, Saket Courts New Delhi (hereinafter impugned order) in case bearing C.S. (DJ) No. 5907/2016.
2. The relevant facts leading to the filing of the instant revision petition are as follows:
a. The petitioner No. 1/defendant No. 6 namely East Point Education Society, is a registered education society. During a meeting held on 30th May, 2006, a resolution was passed to convene an Annual General Meeting (hereinafter AGM) within 45 days of that meeting, during which elections for the members of the Governing Body/Executive Council would take place. Consequently, all members, including the plaintiff No. 1 (respondent No.1 herein herein) were notified of the AGM scheduled for 4th July, 2006, through a notice dated 14th June, 2006.
b. During the AGM held on the 4th of July, 2006, elections were conducted, resulting in the removal of the respondent No 1/plaintiff No. 1 from the post of president of the petitioner No. 1 society.
c. Pursuant to the above, the plaintiffs (respondents herein) filed a civil suit bearing No. CS (OS) 1774/2008 titled Mohinder Singh and Ors. v. Amita Gupta and Ors. seeking permanent and mandatory injunction, and declaration against the petitioners herein, before this Court in the year 2008.
d. The respondents in this case also filed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, alongside the aforementioned civil suit, seeking an ex-parte ad interim injunction against the petitioners. This application requested a stay on the operation of the orders/letters dated 19th August, 2008 and sought to restrain the petitioners from taking any action against the respondents pursuant to the said order.
e. The Predecessor Bench of this Court, by its order dated 20th August 2008, granted limited ex-parte interim relief to the respondents, by restraining the petitioners from expelling the respondents from the primary membership of the petitioner No. 1 society. The interim order dated 28th August, 2008 was subsequently confirmed by the Predecessor Bench of this Court on 24th January, 2012 to remain in effect until the final disposal of the aforesaid civil suit.
f. Thereafter, vide order dated 9th August, 2011, issues were framed in the aforesaid suit based on the pleadings of the parties.
g. Subsequently, pursuant to a notification No. 27187/DHC/Orgl. dated 24th November, 2015 , and in accordance with the powers under Section 4 of the Delhi High Court (Amendment) Act, 2015, effective from 26th October, 2015, the civil suit bearing No. CS(OS) 1774/2008 was transferred to the learned District Court and the parties were directed to appear before the learned District Court at Saket.
h. The above-mentioned suit was continued as C.S.(DJ) No. 5907/2016 titled Mohinder Singh and Ors. V. Amita Gupta and Ors before the learned ADJ-05, South-East District, Saket Courts New Delhi.
i. During the course of proceedings, the learned ADJ-05, South-East District, Saket Courts, framed additional issues in the aforesaid civil suit vide the impugned order dated 27th April 2024, thereby, placing the onus of proof on the petitioners herein/defendants.
j. Aggrieved by the aforesaid impugned order, the petitioners have filed the instant civil revision petition seeking setting aside of the same.
3. Mr. Puneet Mittal, learned senior counsel appearing on behalf of the petitioners submitted that the learned Trial Court failed to appreciate the facts and circumstances of the case in a proper manner and passed the impugned order without the application of judicial mind.
4. It is submitted that the learned Trial Court erred in passing the impugned order as the additional issues have been framed almost 16 years after the institution of the civil suit and 13 years after the initial issues were originally framed in the case. Furthermore, the impugned order has been issued after the completion of comprehensive cross-examination of the respondents star witness namely Sh. Mohinder Singh.
5. It is submitted that the issues initially framed in the civil suit back in the year 2011, were comprehensive and duly reflective of the pleadings at that time. It is further submitted that no averment has been made in the plaint with regard to the additional issues which makes the said issues erroneous as it is beyond the pleadings. Furthermore, the respondents have failed to adduce any evidence with respect to the alleged resignation of the petitioners, which is now sought to be adjudicated upon by virtue of the additional issues.
6. It is submitted that the evidence of the respondent No. 1 commenced only in the year 2017 and concluded with his discharge after comprehensive cross-examination on 4th April, 2024. It is also submitted that the respondent No. 1 is the star witness for the respondents and it would be highly unreasonable and prejudicial to direct him to lead fresh evidence on the newly framed additional issues as such a directive would reopen the trial, causing undue hardship to the petitioners, who have already been dragged into this protracted and vexatious litigation without just cause.
7. It is submitted that it is a well-settled principle of evidence law that the burden of proof lies upon the party who asserts the existence of certain facts and the learned Trial Court erred by ascribing the onus to prove the additional issues upon the petitioners whereas the same should fall upon the respondents, to establish the acceptance of the alleged resignations.
8. It is submitted that the respondents have neither made any substantive assertions in their pleadings nor have they led any evidence regarding the alleged resignations, and any fresh evidence to that effect would perpetuate an unjust cycle of vexatious litigation to the petitioners detriment.
9. It is also submitted that the impugned order was passed without granting an opportunity of being heard to the petitioners, thus, violating the principles of natural justice and framing of additional issues at such a belated stage of the trial would undoubtedly lead to a travesty of justice against the petitioners, who have been continuously embroiled in this unnecessary litigation.
10. Therefore, in view of the foregoing submissions, it is prayed that the impugned order passed by the learned Trial Court may be set aside and the relief be granted.
11. Per Contra, learned counsel appearing on behalf of the respondents vehemently opposed the instant petition submitting to the effect that the same is liable to be dismissed being devoid of any merit.
12. It is submitted that the impugned order has been passed after taking into consideration the entire facts and circumstances of the case and there is no illegality of any kind in the impugned order.
13. It is submitted that the additional issues framed by the learned Trial Court are integral to the proper adjudication of the dispute raised qua the civil suit. These issues, along with the other issues already framed, are crucial for determining the respective rights and liabilities of the parties.
14. It is further submitted that the learned Trial Court has correctly placed the burden of proof upon the petitioners, as they have challenged the validity of the resignation tendered by the plaintiffs (respondents herein).
15. It is submitted that as per the settled position of law, the Order XIV Rule 5 of the Code empowers the Courts to frame issues at any time before passing the decree. Further, any delay in trial is not at the behest of the respondents.
16. It is submitted that the trial is at the stage of examination of plaintiff witnesses and examination of PW-2 is underway as per the latest report of the Local Commissioner dated 30th May, 2024. The total plaintiff witnesses are three, out of which PW-1 stands examined, PW-2 is currently being examined and only PW-3 remains to be examined.
17. It is submitted that it is the discretion of the learned Trial Court to amend or frame additional issues as and when it deems fit, depending on the facts and circumstances of the case, the controversies involved, and disputed facts of the case, so long as the same are framed or amended before passing of the decree. The legislative intent is abundantly clear from the wording of the provision itself.
18. It is submitted that the minutes and agenda qua the said meetings in question were disputed even before, and werent fresh issues as is amply evident from the impugned order itself.
19. It is further submitted that a perusal of the issues framed on 9th August, 2011 would depict that the additional issues framed on 27th April, 2024 are not new and were covered by the original issues so framed. It is submitted that after the discharge of onus of proof from the respondents (plaintiffs), the same was shifted upon the petitioners (defendants) to prove their own disputed assertion.
20. It is submitted that the petitioners contention that framing of additional issues would lead to adducing fresh evidence despite no averment being made qua same in the suit, is totally false and misconceived.
21. It is further submitted that a perusal of the suit at paragraph No. 21 @ page No. 53 would reveal that the issue qua resignation in July, 2005 has been already raised. Moreover, the averments made in the suit shows that the resignations were even sent to the Registrar of Societies and issue qua the meeting dated 4th July, 2006 has also been raised in the suit as can be seen from paragraph No. 19 to paragraph No. 22 @ page No. 51 onwards.
22. It is submitted that a perusal of the Trial Courts Record would reveal that even the petitioners (defendants) have filed the minutes and agenda qua the said meetings. It is also submitted that as such framing of the additional issues would not tantamount to leading fresh evidence as the same are already under dispute and are already tendered in evidence by respondents/plaintiffs. However, since the same were contested by the petitioners/defendants, the learned Trial Court deemed it appropriate to shift the onus on them to prove their disputed assertions.
23. It is further submitted that the petitioners (defendants) had also disputed the minutes and agenda of said meetings, and whether the resignations were acted upon. As such, it is a settled law as well as the petitioners own case that burden of proof lies upon the person asserting such facts. Thus, as per their own stance, they ought to prove the disputed facts so contended and issues raised by them qua the said meetings.
24. Therefore, in view of the foregoing submissions, it is prayed on behalf of the respondents that the impugned order passed by the learned Trial Court may be upheld.
25. Heard the learned counsel for the parties and perused the record.
26. It is the case of the petitioners/defendants that the learned Trial Court has framed three additional issues after 16 years of the institution of the suit and therefore, the same is after a belated stage when the trial is almost complete. The petitioners contend that the learned Trial Court has acted beyond its authority by framing these additional issues as the same are beyond the pleadings, and erroneously placed the burden of proof upon the petitioners/defendants. Further, the framing of such additional issues would require leading of fresh evidence which is against the law as the petitioners will be subjected to prejudice and hardship.
27. In rival submissions, the learned counsel for the respondents/plaintiffs submitted that the additional issues framed by the learned Trial Court are essential for the effective adjudication of the civil suit and the subsequently framed issues are in conjunction with those already framed and pivotal in determining the respective rights and liabilities of the parties involved. Further, it is vehemently submitted that the learned Trial Court is duly empowered to frame the additional issues under Order XIV Rule 5 of the Code as the same have been framed before the passing of the decree, thus, the impugned order is in accordance with the settled position of law. Moreover, the assertion of the petitioners that the additional issues would require fresh evidence is baseless as the plaint already talks about the meetings and resignations. Additionally, the respondents have argued that the leaned Trial Court has rightly placed the onus of proof upon the petitioners since they themselves disputed the resignation and the agenda of the meeting, thus, no illegality in the impugned order.
28. Therefore, the issues that fall for the determination by this Court are as follows:
Issue No. 1 – Whether the learned Trial Court has rightly framed the additional issue after the stage of completion of pleadings and conclusion of evidence of respondents witnesses?
Issue No. 2 – Whether the learned Trial Court has correctly placed the onus of proof on the petitioners in the additional issues?
29. At this stage, it is apposite to peruse the impugned order passed by the learned Trial Court. The relevant paragraphs of the same are reproduced herein below:
Defendants have admitted their signatures on the resignation but set up a defence that resignation were never acted upon. Minutes of meeting of the year 2005-2006 are in dispute and the minutes filed by the plaintiff show the signature of the president, whereas, while arguments today it was contended by Ld. counsel for defendant that ordinarily it is for the secretary to sign the minutes, the agenda of the meeting is also a fact in issue. If, it was for the secretary to sign the minutes of the particular meeting, and the signature of the secretary appeared in the attendance, then of course the fact (as to what was the agenda and what were the minutes of the meeting) should also be specially within the knowledge of the secretary. Further, all the other persons i.e. the defendants who attended the said meeting would know what was the agenda and what was the outcome of the meeting, and therefore onus is equally on them to show (if these are not the genuine minutes and beyond the agenda) as to what was the agenda and what were the minutes. Therefore the additional issues are required to be framed in the present case that is:

“1.(a) What was the agenda of meeting dated 19.07.2005 and 04.07.2006? OPD
1.(b) What was the decision arrived at in the meeting dated 19.07.2005 other than the minutes relied upon by plaintiff? OPD
1.(c} That the resignation letter were given by the defendant in the year 2002 but they were not to be acted upon? OPD..

30. Upon perusal of the aforementioned impugned order, it is made out that the learned Trial Court observed that while the petitioners admitted their signatures on the resignation letters, they contended that the resignations were never acted upon. The minutes of the meetings held during the years 2005-2006 are in dispute. The minutes presented by the respondents had signature of the president, while the defendants argued that it was the secretarys duty to sign the minutes. The agenda of the meetings was also a fact in issue. The Court noted that if the secretarys signature appeared in the attendance but not on the minutes, the agenda and the outcome of the meetings should be within the special knowledge of the secretary. Furthermore, the learned Trial Court acknowledged that all the other attendees of the meeting, including the respondents, would also be aware of the agenda and the decisions made during the meeting. Thus, the onus equally rested upon them (defendants) to demonstrate if the minutes were not genuine or exceeded the agenda.
31. Consequently, the learned Trial Court found it necessary to frame additional issues to address the aforesaid factual disputes for adjudication regarding the minutes of the meetings dated 19th July, 2005 and 04th July, 2006, the decision taken in the meeting dated 19th July, 2005 beyond the minutes relied upon by the respondents, and whether the resignation letters tendered by the petitioners in the year 2002 were not to be acted upon.
Issue No. 1 Whether the learned Trial Court has rightly framed the additional issues after the stage of completion of pleadings and conclusion of evidence of respondents witnesses?
32. The petitioners have contended that the learned Trial Court lacked the authority to frame additional issues beyond the stage of pleadings, particularly after the evidence of the witness Sh. Mohinder Singh, in the civil suit, has been completed.
33. It has been further argued that the additional issues were framed without affording the petitioners an opportunity to be heard, which, they assert, undermines their right to a fair hearing. Consequently, the petitioners submit that the learned Court does not possess the jurisdiction to frame the additional issues at this advanced stage of the proceedings as the same will be detrimental to their legal rights which will cause them great hardship and prejudice.
34. The power to frame additional issues by a Court to entertain civil disputes is conferred by the Code of Civil Procedure, 1908, under Order XIV Rule 5. This provision grants the Court the authority to amend, strike out, or frame additional issues at any stage of the proceedings as deemed necessary. The said rule empowers the Court to ensure that the real matters in dispute are clearly identified, allowing for the effective adjudication of the case. Order XIV Rule 5 of the Code is reproduced below for reference:
Order XIV – Settlement of Issues and Determination of Suit on Issues of Law or on Issues agreed upon
***
5. Power to amend and strike out, issues.
(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.

35. This power to frame additional issues is not limited to the initial framing of issues and can be exercised as the case progresses. The rationale behind this provision is to ensure that the real controversies between the parties are clearly identified so that both sides can be fully aware of the claims and defences they are required to address. The framing of issues is a judicial duty, performed by the Court based on the materials available before it, which include the pleadings, the documents submitted by the parties, and any admissions made during the proceedings, as contemplated under Rule 3 of Order XIV of the Code.
36. The framing of issues serves to narrow the scope of the dispute and streamline the proceedings by defining the exact points of contention. It is the Courts responsibility to assess the pleadings and other evidence before it, and based on this assessment, to frame issues that reflect the core legal and factual disputes. While parties and their advocates may assist the Court in this process, they do not have an inherent right to be heard before the Court frames or modifies the issues. This is because the act of framing issues is a judicial function, carried out to clarify the matter in hand, and parties are expected to respond to the issues as framed by the Court.
37. Without going into the necessity of elaborating more on the specific and relevant provision of framing of issues in terms of Order XIV of the Code, it is apposite to state that the object and purpose of framing issue in a civil suit is that before giving any specific finding, parties must be put to notice and the parties can lead evidence in such regard. The said position of law was discussed at length by the Honble Supreme Court in the case of V.S. Ramakrishnan vs P.M. Muhammed Ali, 2022 SCC OnLine SCC 1545, the relevant portion of which reads as under:
8. Now the findings and the reasoning given by the learned Trial Court refusing to pass a decree for specific performance is concerned it appears that though there was no specific issue framed by the learned Trial Court on readiness and willingness on the part of the plaintiff, the Trial Court has given the findings on the same and has non-suited the plaintiff by observing that the plaintiff was not having sufficient funds to make the full balance consideration on or before 12.01.2006. Such a finding could not have been given by the learned Trial Court without putting the plaintiff to notice and without framing a specific issue on the readiness and willingness on the part of the plaintiff. There must be a specific issue framed on readiness and willingness on the part of the plaintiff in a suit for specific performance and before giving any specific finding, the parties must be put to notice. The object and purpose of framing the issue is so that the parties to the suit can lead the specific evidence on the same. On the aforesaid ground the judgment and order passed by the learned Trial Court dismissing the suit and refusing to pass the decree for specific performance of the agreement to sell confirmed by the High Court deserves to be quashed and set aside and the matter is to be remanded to the learned Trial Court to frame the specific issue with respect to the readiness and willingness on the part of the plaintiff. On remand the parties be permitted to lead the evidence on the readiness and willingness on the part of the plaintiff to perform his part of the contract, more particularly, whether the plaintiff was ready and willing to pay the full consideration and whether the plaintiff was having sufficient funds and/or could have managed the balance sale consideration.

38. Thus, on the basis of the same, this Court is of the view that the Courts are empowered to amend, strike out, or frame additional issues at any stage during the pendency of the suit. This authority is exercised based on the materials presented before the Court, and it is primarily the Court’s responsibility to frame or reframe issues to ascertain the precise nature of the controversy. While parties may assist the Court in this process, they do not have an inherent right to be heard prior to the framing or reframing of issues. If errors occur, parties can request corrections, but the Court retains the discretion to amend issues when necessary. Here, reliance is placed upon a judgment passed by the Division Bench of this Court in Finolex Cables Ltd. v. Finolux Auto (P) Ltd., 2007 SCC OnLine Del 971¸ wherein, it was observed that the Courts have the power to frame additional issues at any stage of the suit, but before the decree is passed and the same would facilitate the complete adjudication of the controversies involved and would rather be in the interest of both the parties. The relevant portion of the said judgment is as under:
15. The matter can be examined from another angle. The defendant has filed the written statement raising various issues/contentions in the form of its defence. The suit will undergo full fledged trial in the form of evidence by the plaintiff and cross-examination of the plaintiffs witness (es) by the defendant and evidence of the defendant, whose witness (es) would be cross-examined by the plaintiff. Will it be proper to have complete trial of the suit in the manner a normal suit proceeds, but without framing of the issues? We are of the opinion that if the issues are framed, it would be better for both the parties as that would help the parties to understand the nature and scope of the controversy on which they are required to lead their evidence. Rule 1 of Order XIV CPC stipulates that issues arise when a material proposition of fact or law is affirmed by one party and denied by another. These issues are to be culled out from the pleadings which are already on record. Rule 5 of Order XIV CPC becomes relevant in this context. Though this Rule deals with amendment or striking out issues, the Court is given power to amend the issues or frame additional issues on such terms as it thinks fit at any time before passing a decree. When the Court is given power to amend issues or frame additional issues at any stage of the suit, before the decree is passed, we fail to understand as to why the issues be not framed now, which exercise would be only a reflection of determining as to whether the parties are at variance with each other. It would facilitate the complete adjudication of the controversies involved and would rather be in the interest of both the parties.

39. Applying the afore stated judicial dicta to the facts of the instant case, it is evident that the learned Trial Court is empowered to frame the additional issues even when the stage of pleadings and respondents evidence is complete as contended on behalf of the petitioners. The stand of the petitioners that the learned Trial Court erred by framing additional issues after 16 years of institution of the above civil suit cannot be accepted as the same is without any merit.
40. Therefore, this Court is of the view that the learned Trial Court proceeded to frame the additional issues in accordance with the law.
41. Although, the goal has to be the expeditious disposal of a litigation, however, merely asserting that the additional issues have been framed after a prolonged period of institution of a civil suit is not a legal ground to challenge the impugned order as the additional issues framed by the learned Trial Court are based on the pleadings and also form part of the initial issues framed by the Court vide order dated 9th August, 2011.
42. It is pertinent to mention here that in their original plaint, the respondents have prayed for a decree of declaration, seeking that the minutes of the meeting allegedly held on 4th July, 2006 wherein the plaintiff No. 1/respondent No. 1 was removed from the chairmanship of the society, and the members who had previously resigned were reinstated as office bearers be declared null and void, being illegal and arbitrary.
43. To substantiate their contention, the respondents have placed reliance on the resignation of the office bearers who had allegedly voted plaintiff No. 1 out of office and removed him from the post of President. During the course of arguments, the respondent No.1 brought the attention of this Court to the specific averments made in the plaint, contending to the effect that a perusal of paragraph nos. 19 to 22 of the plaint would show that the issue qua resignation in July, 2005 has been raised and that the resignations were even sent to the Registrar of Societies. Moreover, issue qua the meeting dated 4th July, 2006 has also been raised in the suit. The relevant portion of which is as under:
19. That everything was running smooth till the Plaintiff No.1 received a notice on 20.06.2006, purported to have been issued on 14.06.2006 calling an Annual General Meeting on 04.07.2006 while the Defendant No.s 1, 2 and 3 were fully aware that the Plaintiff No.1 was going to be away from 24.07.2006. Since the Annual General Meeting of the society had to be held on a date and time to be fixed by the Governing Body/Executive Council and had to be called by the President, the Plaintiff No.1 tried to contact Defendant No.3 on his mobile phone on 20th 21st and 22nd June 2006. The Plaintiff No.1 wrote to the Defendant No.3 on 24.06.2006 informing him of the correct position in accordance with the Rules and Regulations and to postpone the meeting and call a Governing Body Meeting instead of 28.7.2006 to discuss the Agenda as detailed in the said letter. A copy of the said letter was also sent to other members of the Governing Body. In response to the same, the plaintiff no.1 was sent a letter dated 30.06.2006 under the signature of the Secretary of the Society informing the Plaintiff No.1 that the meeting could not be deferred and would be held on 04.07.2006 itself.
20. That in pursuance of the above, the Annual General Meeting of the Society was held on 04.07.2006 and the minutes of the said meeting have also been obtained by the Plaintiff No.1, whereby the Plaintiff No.1 was illegally removed from the Chairmanship of the Society by holding the elections in his absence. Moreover the minutes were illegal in as much as the Defendants who were made office bearers of the Society had already tendered their resignations way back before the holding of the said meeting.
21. That in order to give effect to the Memorandum of Understanding dated 30.12.2002, the above said Defendants had already tendered their hand written resignations in the month of July, 2005 itself, which were to be considered in the meeting to be held on 28.07.2006 and appropriate decision in respect thereof was to be taken by inducting new members in their place. The said resignations have already been sent to the office of Registrar or Societies.
22. That the Plaintiff No.1 on his return, got in touch with Defendant No.s 1, 2 & 3 who had been earlier advised to continue till the induction of new members in their place was taken in the Governing Body and the fresh elections can be conducted on a date to be fixed by the Governing Body after the return of the Plaintiff No.1. However, to his utter dismay and surprise, the Plaintiff No.1 started receiving letters from Defendant No.s 1 & 3 and has been able to get some copies of alleged Minutes of the meetings held on 22.02.2006, 10.04.2006, 30.05.2006 and 4.7.2006. The said minutes are apparently forged and fabricated by the defendants in order to some how or the other oust the Plaintiff No.1 and the said defendants have clearly conspired in forging and fabricating the records by antedating the minutes of alleged illegal meetings which never took place and which are contradictory to the minutes of the meetings held earlier which were never attended by the Plaintiff No.1 and hence all the above defendants have conspired together to form an illegal parallel Society after having inducted the Plaintiff No.1 to invest crores of rupees in the said society from his pocket. The Plaintiff No.1 started receiving Cheques of Rs.40,000/- (Rupees Forty Thousand Only) per month and on inquiry, it was revealed that the same are in respect of the amount deposited by Plaintiff No.1 in the society. The said Cheques have never been encashed by the Plaintiff No.1 as the same are being illegally sent to the Plaintiff No.1 to make him accept that he is willing to settle the matter by receiving back the amount invested by him

44. Perusal of the above averments extracted from the plaint shows that the plaintiffs/respondents have raised the contentions qua the issue of resignation and meeting held in July, 2005 and on 4th July, 2006.
45. This Court has examined the plaint of the above civil suit and the impugned order and it is evident that the suit pertains to the resignation of certain members of the petitioner society and the removal of the respondent No. 1 from the post of President of the petitioner No. 1 society.
46. Furthermore, in paragraph Nos. 20 and 21 of their written statement, the petitioners have admitted that a General Body/Executive Council Meeting was convened on 19th July, 2005, however, they dispute the authenticity of the minutes of the said meeting that is placed before the learned Trial Court by the respondents, alleging that the minutes were forged and fabricated.
47. Conversely, the petitioners allege that the said resignation was never intended to be acted upon and was submitted to the respondents as a mere trust-building measure.
48. It is observed by this Court as well as the learned Trial Court that both the parties have conceded that meetings were held on 19th July, 2005 and 4th July, 2006; however, the agenda and proceedings of these meetings remain disputed.
49. It is evident that the primary dispute revolves around the membership status of the respondents and the validity of the resignation as well as the minutes of the meeting.
50. Therefore, the framing of additional issues is essential for the adjudication of the matter, ensuring that no prejudice is caused to either party.
51. It is crucial for the learned Trial Court to determine whether the resignation tendered by the petitioners was acted upon or not. Additionally, the agenda of the meetings is in dispute, and since the minutes of the meetings are contested, their resolution is necessary for the proper adjudication of the case.
52. In view of the above, it is held that the framing of additional issues was necessary for the learned Trial Court to ascertain the rights and liabilities of both the parties as well as determination of the actual dispute among the parties.
53. It is apposite to state here that the trial is presently at the stage of evidence, and no prejudice shall be caused to any party as a result of the additional issues as the trial has not reached the stage of passing the decree.
54. Further, this Court is of the considered view that both the parties will have sufficient opportunities to lead evidence and cross-examine witnesses in support of their contentions regarding the additional issues, in accordance with the procedural law and the rules of evidence.
55. Summarily stated, the trial is yet to be concluded and it is well within the learned Trial Courts power to frame additional issues at any stage of the proceedings, should such issues be necessary for the proper disposal and resolution of the dispute in the above civil suit.
56. Ultimately, Order XIV Rule 5 of the Code is designed to ensure flexibility and fairness in the trial process. By empowering the Courts to modify issues as necessary, the provision ensures that the proceedings remain focused on the relevant disputes and that the Court can address any new matters that arise during the course of the trial.
57. In the instant case, the petitioners right to seek modification of the issues remains intact, but their objection to the Courts exercise of its powers under Order XIV Rule 5 of the Code does not undermine the validity of the additional issue framed by the learned Trial Court.
58. In light of the above discussions, it is held that the learned Trial Courts decision to include the additional issues alongside the other issues does not warrant interference by this Court, as this falls squarely within the powers conferred upon the learned Trial Court under Order XIV Rule of the Code. It is held that the learned Trial Court has rightly exercised its authority in framing the additional issues and acted well within its vested powers under the law. The petitioners argument that the learned Court below erred by framing the additional issues does not hold any merit and the said argument is rejected.
59. At this juncture, it is pertinent to mention that the additional issues framed vide the impugned order are not beyond the pleadings and the same is evident from the plain reading of the contents of the plaint. Further, this Court is of the considered view that any evidence that is required to be led in pursuance to the additional issues may already be on the record of the learned Trial Court and prima facie, no fresh evidence may be required to be brought on record, however, in case, any such need arises, the parties will be well within their rights to bring additional evidence/documents, in accordance with the law.
60. Accordingly, issue no.1 stands decided in favour of the respondents/plaintiffs.
Issue No.2 : Whether the learned Trial Court has correctly placed the onus of proof on the petitioners in the additional issues?
61. Now addressing issue no. 2.
62. The petitioners have challenged the impugned order stating that the onus of proof has been wrongly placed upon them. Thus, it is crucial to examine whether the onus lies on the respondents or the petitioners and whether the learned Trial Court has wrongly placed the onus upon the petitioners/defendants.
63. The law behind the onus of proof is well settled and has been enumerated by the Honble Supreme Court as well as various High Courts in a catena of judgments. The onus of proof is a concept related to the law of evidence wherein the party asserting certain factual point or law point is ascribed with the burden to prove their assertion. In other words, the party asserting certain point before a Court of law has the responsibility to prove the same.
64. In Totaram Maharu v. Ramabai Chavdas Kolhe, 1975 SCC OnLine Bom 130, the Division Bench of the Bombay High Court while discussing the issue of placing onus of proof on a certain party held that since the plaintiff asserted that the will in question in the said case was procured under undue influence, the onus to prove the same is on the plaintiff only. The relevant paragraphs of the said judgment reads as under:
..6. I will now turn to the evidence on the question of undue influence in regard to which, as already stated above, the onus is on the first defendant. I may state that this question has been dealt with very scrappily and unsatisfactorily in para. 13 of the judgment of the learned trial Judge where he discloses an incorrect approach to the same. Since the onus on this issue is on the first defendant, it would be appropriate to refer first to her evidence. As already pointed out by me earlier whilst discussing the question of due execution, the first defendant’s evidence on the point of undue influence is merely in the nature of a surmise when she states, the plaintiff must have taken the signature of my husband on the paper under influence. That surmise is apparently based on the immediately preceeding sentence in her evidence that, according to her, the plaintiff had influence on her husband, as well as the succeeding sentence in which she has stated that she came to know of the Will two and a half months after her husband’s death. Not only is that evidence wholly insufficient to discharge the onus which rests upon her of proving that the Will was procured by undue influence but, as laid down by the Privy Council in Bur Singh’s case as well as in Gomtibai’s case cited above, the mere fact that the propounder of a Will was in a position to influence the deceased is not sufficient, but the caveator must lead evidence that such influence was in fact exercised by the deceased. There is no evidence worth the name led by the first defendant as far as the actual exercise of undue influence by the plaintiff on the deceased is concerned. In that view of the matter, it would be unnecessary for me to discuss the evidence led on behalf of the plaintiff which clearly speaks to the contrary. Suffice it to say, that the evidence in regard to the circumstances leading to the execution and attestation of the Will clearly shows that the deceased had undoubtedly prepared for the execution of the Will and had actually arranged for its execution and attestation as a matter of his own free Will and there is, therefore, no question of any undue influence having been exercised on him by the plaintiff or any other person in that behalf. I have, therefore, no hesitation in coming to the conclusion that the first defendant has hopelessly failed to discharge the onus which rests upon her of proving that the Will was procured by the plaintiff by undue influence, and in holding that the evidence led by the plaintiff actually negatives the plea of undue influence set up by the first defendant. In my opinion, the conclusion of the learned trial Judge on this point is clearly erroneous and seems to have been the result of putting the onus on the plaintiff, contrary to the clear legal position laid down by the authorities already discussed above. The fourth issue, as framed by him, was correct as far as the question of onus was concerned. In actually dealing with the same, he however appears to have lost sight of the question of onus of proof of that issue. In my opinion, the question of onus should not enter into the framing of issues at all, but should be dealt with by the Court when taking up the issues for consideration. The form in which an issue is framed should not be determinative of the question of onus. For instance, issue No. 4 could well have been framed in the following form:
Was the Will dated August 4, 1963 obtained by the plaintiff by the exercise of undue influence on the deceased?..

65. Further, the Coordinate Bench of this Court in Anil Kumar v. Devender Kumar, 2019 SCC OnLine Del 8782, when posed with a similar issue such as in the present case, held that if a defendant denies any material proposition of fact or law, which only the defendant can prove, in such an event, issue qua the said fact would be framed by placing the onus to prove the same on the defendant itself. The relevant portion of the said judgment is as under:
..19. Thus, the counsels as well as the Court, at the stage of framing of issues, are required to peruse the pleadings and in reference to the relief claimed, cull out the essential ingredients which the plaintiff is required to prove to be entitled to that relief and to see whether the defendant is specifically denying (not vaguely denying) the same and if denying, on what facts or grounds and thereafter consider on whom the onus of proof should be. If the denial by the defendant of any material proposition of fact or law is on the basis of facts which the defendant only can prove, issue qua the said fact would be framed placing the onus thereof on the defendant. For instance, when the denial of document claimed to be a Will is on the pleas of valid execution thereof, an issue whether the document is the validly executed last Will of the deceased with onus on the petitioner/plaintiff has to be framed. However, when in addition to the denial of valid execution, a defence is also taken of the deceased being incapacitated by reason of unsoundness of mind or any other ground from making a Will, in addition, an issue whether the deceased at the time of executing the document claimed to be the Will was not in a sound state of mind with onus on the respondent/defendant who alone can prove the unsoundness of mind or other ground pleaded for challenging the testamentary capacity can prove the same, has to be framed. Thereby the requirement of Order XIV Rule 1(3), of a distinct issue being required to be framed on each material proposition affirmed by one party and denied by the other, is fulfilled

66. Therefore, insofar the law is concerned, this Court is of the view that there is no doubt that the onus to prove is placed upon the party who is challenging or contending certain factual or law point in a case. Furthermore, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Similar observations have also been made by the Sikkim High Court in Lhakila Tongden Lepcha and Ors. v. Passang Tongden Lepcha, AIR 2013 Sik 40, wherein, the Court, while referring to Section 101 of the Indian Evidence Act, 1872 held that while framing the issues, it is duty of the Trial Court to fix the onus of proof upon the party who had alleged existence or non-existence of certain facts. The relevant extracts of the said judgment is as under:
16. We have thoroughly and carefully perused the judgment impugned and the evidence on record. We have noticed the issues famed by the Court. Issues No. 1 to 4 have been decided against the plaintiffs, appellants before us. We have noticed that while framing the issues the Trial Court has not placed onus of proof upon any of the parties as required under law. Section 101 of the Indian Evidence Act, deals with the burden of proof and reads as under:
101 Burden of proof. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

17. In very of the above provisions it was the bounden duty of the Trial Court to have fixed the onus or burden of proof while framing the issues upon the parties, who had alleged facts the basis of formulating the issues. The Trial Court has failed in its duty to fix onus leaving the parties to lead their evidence in a half hazarded manner. As regards the issue No. 1 is concerned, apparently it appears that the burden of proof lies on the plaintiffs/appellants to establish the oral gift in favour of Rinzing Tongden Lepcha by his late father Athup Tshering Lepcha. From the entire evidence lead by the plaintiffs-appellants, we find that except for the statement of the plaintiffs no evidence was led to establish as to when Athup Tshering Lepcha made the alleged oral gift.***

67. This Court has carefully reviewed the material available on record including the petitioners/defendants written statement, where they have categorically contested all the allegations regarding the resignation, minutes of meetings, the agenda of the meeting etc.
68. The petitioners have asserted that the minutes submitted by the plaintiffs are forged, fabricated, and included several unauthorized additions by the plaintiffs themselves. Additionally, the petitioners argued in their written statement that as per procedure, the minutes in question should have been signed by the secretary/petitioners/defendants of the society, and not by the plaintiffs/respondents, casting doubt on the authenticity of the documents presented. Hence, the question of onus of proof revolves around these factual disputes. Some portion of the contentions made by the petitioners/defendants in their written statement is reproduced herein below for reference:
..Para 19.
As regards holding of AGM on 04.07.2006, it is stated that AGM was called following the proper procedure laid down in the Memorandum of Association of the Society. As the last AGM was held on 15.03.2003 and as per the rule 17 (1) (a) and 20 (b) of the Memorandum of Association of the Society, it was obligatory to have an AGM after the lapse of the tenure of the existing Governing Body/Executive Council. For this requisition letter dated 08.05.2006 and 02.06.2006 signed by as many as 4 members of the Society was given and also as per the minutes of the meeting dated 30.05.2006, it was resolved to call the AGM within 45 days of the meeting and hold the elections for the members of the Governing Body / Executive Council and accordingly every member including the Plaintiff No. 1 was informed vide notice dated 14.06.2006 regarding the holding of AGM on 04.07.2006. The Plaintiff No. 1 only after receiving this notice came into action because prior to that he was neither attending any meeting nor responding to the requests made by the other members of the Society. The letter dated 24.06.2006 of the Plaintiff No. 1 to Defendant No. 3 and its reply dated 30.06.2006 by Defendant No. 3 to the Plaintiff No. 1 are admitted and for reasons stated in the reply itself, the meeting could not be postponed from 04.07.2006. It is stated that in the said AGM, the elections were held for electing the members of the Governing Body / Executive Council and nominations were made for the Managing Committee of the School and a new set of office bearers were elected. However, the Plaintiff No. 1 still continued to be a member of the Governing Body / Executive Council and Managing Committee also. It is pertinent to add that inspite of being informed none of the Plaintiffs attended the AGM nor any of his representatives perhaps a deliberate strategy to cause harm to the Society / else a follow up to a devious plan was in ensue.

Para 20 & 21: ..
.The Answering Defendants craves leave of this Honble Court to rely on the reply given in para 8 of the Written Statement as regards the resignations tendered by the members of the Society. As a matter of fact these were not resignations in true sense and were never intended to be acted upon and neither they were at any point of time acted upon. Only photocopies of letters were handed over to Plaintiff No.1 as confidence building measure..
****
Interestingly enough, in the light of documents annexed with the Plaint at pages 19 to 20 copy of the alleged minutes of meeting dated 19.7.2005. At the first place, it is submitted by the answering Defendant that though a General Body / Executive Council Meeting was held on 19.7.2005, the minutes annexed with the Plaint are not genuine minutes of the meeting and are forged and fabricated as in all six members have been shown to have attended the meeting, however, it is submitted that Mrs. Poonam Sembhi shown to have been present was not physically present there and the meeting was attended by five members, including Plaintiff No. 1, Defendants Nos. 1 to 4. The alleged minutes dated 19.7.2005 are contrary to the averments made in the plaint, which on the face of it would show that the minutes dated 19.7.2005 is forged and fabricated even with regard to the acceptance of the so-called resignations. The Chairman, as per the minutes annexed, had informed that he had telephonically requested Mrs. Amita Gupta to re-consider her decision to resign, but she expressed her inability to do so. This makes no sense as Mrs. Amita Gupta was very much present in the meeting and also had been shown to be present.

Furthermore, in all 6 members attended the meeting Mrs. Poonam Sembhi was not present even though her signature appears in the attendance sheet. Out of 6 members present 4 resigned and remaining 2 members could not have accepted the resignation in the absence of the quorum.

Again, it was obligatory on the part of the Society to intimate / inform the Registrar of Societies and supply a copy of the minutes at an earliest possible date, which was never done and the Plaintiff No. 1 was the President of the Society at the relevant time. It is stated that in view of the inherent material contradiction, the obvious conclusion, which can be inferred is that the minutes of the meeting dated 19.7.2005 are fake and forged

69. Pertinently, the impugned order also takes note of the contention of the petitioners/defendants wherein the learned Trial Court has categorically considered that although the defendants have admitted their signatures on the resignation, their defence lies in the alleged fact that the said resignation was never acted upon.
70. Further, the impugned order also records that the defence of the petitioners/defendants surmises in the contention that the signature of the president is shown in the said minutes, but during the arguments before the learned Trial Court on 27th April, 2024, the petitioners/defendants contended that ordinarily it is for the secretary to sign the minutes. The petitioners/defendants also disputed the agenda of the aforesaid meeting.
71. Based upon the above contentions, the learned Trial Court observed that if it was for the secretary to sign the minutes of meeting and that the signature of the secretary appears in the attendance sheet of that particular meeting then in such case, the agenda and what were the minutes of the meeting should also be specially within the knowledge of the secretary. Taking into consideration the said observations, the learned Trial Court deemed it appropriate to frame the additional issues which are as follows:
1.(a) What was the agenda of meeting dated 19.07.2005 and 04.07.2006? OPD
1.(b) What was the decision arrived at in the meeting dated 19.07.2005 other than the minutes relied upon by plaintiff? OPD
1.(c} That the resignation letter were given by the defendant in the year 2002 but they were not to be acted upon? OPD..

72. It is an established principle of law that the onus of proof lies upon the party that asserts a fact, particularly when that fact is peculiarly within their knowledge.
73. Appreciating the abovementioned legal principle on the facts of the matter in hand, this Court is of the view that the onus of proof for the additional issues has been correctly placed upon the petitioners/defendants, as the respondents/plaintiffs have already discharged their initial burden by submitting the minutes of the meeting and other documents in support of the averments made in the plaint. The minutes of meeting held on the 19th July, 2005 and 4th July, 2006 detail the agenda and since the petitioners/defendants contest the authenticity of these minutes, it is now incumbent upon them to provide evidence that these documents are forged or fabricated.
74. The respondents/plaintiffs had discharged the initial burden of proof by producing the minutes of the meeting dated 19th July, 2005, which reflected the decisions that were arrived at during the meeting.
75. Further, as the petitioners/defendants contested the authenticity of these minutes, the onus of proof shifts upon them to prove that other decisions were made that were not reflected in the minutes. They have to lead evidence to establish that whatever they claim was the actual outcome of the meeting, beyond what was recorded in the official minutes provided by the respondents/plaintiffs.
76. The respondents/plaintiffs have already presented the resignation letters along with the minutes of the meeting, which show that the resignations were acknowledged.
77. Having admitted their signatures on these resignation letters, the petitioners/defendants have the onus to prove that the resignations were not intended to be acted upon. Their defence, that the resignations were not acted upon, is a factual assertion that they must establish with evidence beyond mere verbal contentions.
78. While casting the onus of proof of the additional issues upon the petitioners, the learned Trial Court has acted judiciously, as the respondents production of documents establishes a prima facie case regarding the agenda, and the onus now shifts upon the petitioners, who have claimed that these minutes are fabricated.
79. In the view of above discussions, this Court finds that the learned Trial Court has rightly placed the onus of proof upon the petitioners/defendants and the same is in consonance with the settled position of law, and there are no errors of law thereto.
80. Accordingly, issue no. 2 stands decided in favour of the respondents.
81. Conclusively stating, the framing of additional issues by the learned Trial Court is in line with the broader principle of ensuring that all material facts are brought to light to arrive at a fair adjudication. The additional issues address crucial questions regarding the agenda and decisions made during the disputed meetings, as well as the status of the resignation letters. These are central to the resolution of the case, and it is appropriate for the learned Court below to frame issues that ensure that the matter is properly examined and adjudicated.
82. Therefore, this Court holds that the learned Trial Court is vested with the authority to frame additional issues beyond the stage of pleadings, including subsequent to the submission of witnesses/evidence and the contention of the petitioners that the learned Court below erred in framing the additional issues beyond the stage of pleading does not hold merit. Furthermore, it is held that the onus of proof has been rightly placed upon the petitioners, as the additional issues framed by the learned Trial Court are based on the written statement, admission qua the resignation, as well as the arguments made before the learned Court below which has been duly recorded in the impugned order.
83. It is a settled law that under Section 115 of the Code, this Court has to look only into the issue of the jurisdiction of the Court below in deciding any application or passing an order, and shall not go into the merits of the case.
84. The mere fact that a decision of the Trial Court is erroneous due to a question of fact or of law does not amount to any illegality or a material irregularity. Only those matters are to be allowed under the revisional jurisdiction of the High Court, wherein, there has been an irregular exercise, or non-exercise, or the illegal assumption of the jurisdiction by the Court below.
85. With regard to the facts of the matter in hand, it has been deliberated by way of the aforementioned judgments and discussions of facts that there are no errors of jurisdiction, and thus, this Court finds no force in the arguments advanced by the petitioners, hence, not inviting any interference of this Court.
86. Therefore, it is held that the petitioners have been unable to make out a case for grant of relief of revision of the impugned order under Section 115 of the Code. It is further held that the learned Trial Court has exercised its jurisdiction in accordance with the law and hence, the arguments advanced by the petitioners against the impugned order are rejected.
87. In view of the above discussions on facts and law, this Court does not find any cogent reasons to interfere in the impugned order dated 27th April, 2024 passed by the learned ADJ-05, South-East District, Saket Courts New Delhi in case bearing C.S. (DJ) No. 5907/2016 and the same is, hereby, upheld.
88. Furthermore, since the civil suit is pending since the year 2008, the learned Trial Court is directed to adjudicate the same expeditiously, preferably, within a period of three months, without granting unnecessary adjournments to either party.
89. It may be noted that nothing expressed hereinabove shall be treated as an expression on the merits of the case.
90. Accordingly, the instant petition stands dismissed along with the pending applications, if any.
91. The order be uploaded on the website forthwith.

CHANDRA DHARI SINGH, J
AUGUST 21, 2024
gs/ryp/av
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C.R.P. 173/2024 Page 35 of 35