- (1.)This appeal is directed against the order dated 15.07.2013 passed by a learned Single Judge of this court in IA No.8006/2012 in CS(OS) No.1361/2006. The said application was filed by the defendant/appellant under Order 14 Rule 5 of the Code of Civil Procedure, 1908 (in short "CPC") for framing of an additional issue. The said application was rejected by the learned Single Judge by virtue of the impugned order dated 15.07.2013. While doing so, the learned Single Judge had observed and noted the fact that the evidence of the plaintiff/respondent had been closed way back on 21.05.2011. Furthermore, the order dated 22.11.2011 also recorded the fact that the defendant/appellant had made a statement that the defendant has no evidence to lead in the matter. Since the plaintiff had already concluded his evidence, the matter was listed for final disposal on 14.03.2012. The above mentioned application (IA No.8006/2012) under Order 14 Rule 5 CPC for framing an additional issue was filed much later on 26.04.2012. The learned Single Judge rejected the said application by observing that entertaining such an application would amount to further delaying the entire proceedings and would constitute an abuse of the process of court.
(2.)The appellant/defendant being aggrieved by the said order has preferred the present appeal under Section 10 of the Delhi High Court Act, 1966. It is an admitted position that an order refusing to frame an additional issue is not an appealable order under Order 43 Rule 1 CPC. It is for this reason that the appellant/defendant has preferred the present appeal invoking the provisions of Section 10 of the Delhi High Court Act, 1966. Section 10(1) of the Delhi High Court Act, 1966 reads as under:- "Where a single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by sub-Section (2) of Section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court."
(3.)A plain reading of the above provision indicates that where a Single Judge of this court exercises ordinary original civil jurisdiction conferred by Section 5(2) of the said Act, an appeal would lie from a "judgment" of a Single Judge to a Division Bench of this court. The whole issue in the present case is whether the order refusing to frame an additional issue on an application made under Order 14 Rule 5 CPC would constitute a "judgment" for the purposes of Section 10 of the Delhi High Court Act, 1966. The learned counsel for the appellant referred to the decision of the Supreme Court in the case of Shah Babulal Khimji v. Jayaben D.Kania and another, 1981 AIR(SC) 1786 to contend that the order impugned herein was an order of the nature referred to as an "intermediary or interlocutory judgment" in the said decision of the Supreme Court. It was contended by him that the impugned order has the quality of finality and, therefore, it would clearly be a judgment. In order to further buttress this argument, the learned counsel for the appellant submitted that the issue, that was sought to be framed as an additional issue, concerns Order 2 Rule 2 CPC and would require the reading of evidence as observed by the Supreme Court in Gurbux Singh v. Bhooralal, 1964 AIR(SC) 1810 Consequently, it was submitted that the right to lead evidence would be lost in case the issue is not framed and for that reason the impugned order rejecting the prayer for framing of an additional issue on Order 2 Rule 2 CPC would amount to an order which would have the quality of finality and, therefore, ought to be considered as a judgment in terms of the decision in Shah Babulal Khimji .