' The pttitioner filed a suit to pre-empt the sale of the land in dispute. In the plaint it was averred that as against the ostensible price of Rs, 1,04,500 mentioned in the sale deed, only a sum of Rs, 57,000 was actually fixed and paid to the vendor. Later on the petitioner moved an application for amendment of the plaint and contended that subsequent to the institution of the suit it came to his knowledge that the respondents had cut and remo;ed from the land, sheesharn trees worth Rs, 10,000 which dimini bed the value thereof. The market value of the land fixed at Rs, 57,000 in s the plaint, was thus subject to be substituted by Rs, 47,000.
' The learned trial Court by its order dated 14th October, 1976 disallowed the application. The operative part of this order is reproduced below :- "However, if the petitioner's intention to seek this amendment is that the price admitted in the plaint reflects the market value of the said land, even then the proposed amendment is unnecessary for the simple reason that no Court would decree the suit on payment of Rs, 57,000. If the petitioner/pre-emptor satisfactorily proves in evidence that the vendee/defendants have felled and removed trees worth Rs, 10,000 after the sale even though no amendment is sought. For these reasons, the application has no force in it and is rejected."
3. On 26th May, 1977 the petitioner moved an application before the learned trial Court for formulation of an additional issue, to enable him to lead evidence on the point that the vendees gained to the extent of Rs, 10,000 by removal of trees. Simultaneously he prayed for issue of notice to the vendees under Order XII, rule 4, C. P. C., for admission or denial of facts as to the cutting of trees and value thereof. The learned Civil Judge by a short order dated 31st May, 1977 disallowed both the prayers. He maintained that the petitioner's application for amendment was rejected and consequently the notice rayed for could also not been issued to the vendees.
' This order has been called in question by the petitioner through this revision.
4. The first submission of the petitioner's learned counsel was, that the learned trial Court while rejecting the amendment application by its order dated 14th October, 1975 maintained that the petitioner could prove through evidence that the vendees felled and removed the trees worth Rs, 10,000, and that, therefore. It was incumbent upon the Court to have struck an issue, to enable the petitioner to lead evidence.
5. It is not possible to agree with the petitioner's learned counsel. An issue can only be framed when in the pleadings, a material proposition of law or fact, is affirmed by one party and denied by the other. Admittedly, the felling of trees did not find mention in the plaint and the petitioner's application for its amendment was also rejected. The trial Court's order dated 14th October, 1975, having not been challenged by the petitioners attained finality. As the pleadings of the parties did not giverise to the issue claimed by the petitioner, the learned trial Court was not wrong in declining to frame the additional issue.
6. It was next argued that there was no legal bar for the learned trial Court in issuing the notice to the vendees to admit or deny the facts mentioned therein : in its order dated 14th October, 1975, the petitioner's right to lead evidence stood recognised ; the notice, therefore, could not be withheld.
7. The learned counsel for the respondents repelled these contentions and argued that the petitioner having closed his affirmative evidence, at such a stage, could not be permitted to serve the notice in question on them. In his submission the petitioner should have availed of the opportunity to lead evidence, at the proper time ; he could not be allowed to fill up omission in his evidence, by resorting 0 the previsions of Order XII, rule 4, C. P. C.
8. The tenor of the trial Court's order dated 14th October, 1975, indicates that it took the view that the petitioner was entitled to prove The felling of trees tad their velue, even without amending the plaint. As observed above the objection of the other side is that after the closure of hi affirmative ,evidence by The petitioner, the learned trial Court was not bound to proceed under Order XII, rule 4, C. P. C. It is to be noticed that the impugned order does not proceed on these lines. The reason which weighed with the trial Court was that since there was no issue. Regarding, felling of the trees, in this behalf notice too, could not be served on the respondents. This view runs counter to the observations made by the learned Civil Judge in his order dated 14th October, 1975. The precise stage of the case, before the learned trial Court, is not ascertainable from the present record.
However, upon the language of Order XII, rule 4, C. P. C, a party is entitled to approach the Court for issue of notice to the opposite-party, at any time but not later than 9 days before the date of bearing. The term date of hearing is to be construed in the light of the context in which it is used.
Since a Court is competent to take notice of even the events occurring after institution of the suit, a party may be allowed to prove facts by serving notice on his adversary even at a late stage. It is quite obvious that the learned Civil fudge did not deny to the petitioner his right to serve notice on the respondents, on the ground that he had closed his affirmative evidence, be rather acted on wholly inappropriate premises. I do not think that in the circumstances of the case, the impugned order can justifiably be upheld.
9. This revision petition is, therefore, allowed to the extent that the learned trial Court shall issue notice to the respondents, prayed for by the petitioner.. This, however, would not entitle the petitioner to lead further evidence as a matter of right.
' The parties are left to bear their own costs,