Madhya Pradesh High Court
Badri Singh vs Shantibai @ Shavba Bai on 25 August, 2015
1 W.P.No.1195/2012
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
JUSTICE SUJOY PAUL
Writ Petition No.1195/2012
Badri Singh
Vs.
Shanti Bai @ Shaba Bai & Ors.
-----------------------------------------------------------------
Shri S.S. Rajput, Advocate for the petitioner.
Shri R.D. Agrawal, Advocate for the respondents.
-----------------------------------------------------------------
ORDER
25/08/2015 This petition filed under Article 227 of the Constitution takes exception to the order passed by the court below, dated 21.01.2012 (Annexure P/1), whereby the application of the petitioner/defendant preferred under Order 14 Rule 5 of CPC is rejected by the court below.
2. In the suit for declaration and correction of entry, the defendants filed their written statement. Thereafter, issues were framed by the court below on 26th June, 2009. The present petitioner/defendant filed application under Order 14 Rule 5 of CPC on 01.12.2011 by contending that a specific objection is raised in the written statement by the defendants in relation to limitation but no issue is framed in this regard and, therefore, issue must be framed in this regard. The said application was 2 W.P.No.1195/2012 opposed by the other side. The court below rejected the said application on singular reason that although said ground is taken in the written statement, it is not specifically averred as to why the plaint is beyond limitation/barred by limitation.
3. Criticizing this order, it is contended by Shri S.S. Rajput that the said issue is necessary for lawful adjudication of the matter which can be framed even at the stage of final hearing of the proceedings.
4. Prayer is opposed by Shri R.D. Agrawal, by contending that after amendment in Order 14 Rule 5 of CPC, the court below is required to hear the parties before framing the issues. In the present case, it must be presumed that parties were heard before framing the issues, thereafter, the petitioner/defendant has no right to claim that another issue has to be framed. In addition, it is contended that the suit was at the stage of final hearing and, therefore, the application was even otherwise, not rightly entertained.
5. No other point is pressed by the parties.
6. I have heard learned counsel for the parties and perused the record.
7. The suit is filed for declaration and correction of entry. In para 7 of the plaint, a bald statement is made 3 W.P.No.1195/2012 that suit is within limitation. In written statement, the defendants have raised special pleadings by contending that the defendant No.1 is in possession for last thirty years and plaintiff is aware about it. Thereafter, in reply to para 7 of the plaint, it is averred that suit is barred by limitation. Thus, it is clear that defendants have taken a specific stand that the suit is barred by limitation. There exists a factual foundation for raising the said objection. The court below has mechanically rejected the said application by holding that sufficient factual foundation is not available for raising that objection. If on the question of limitation, the parties have taken a diametrically opposite stand in the pleadings, the court below should have framed the relevant issue. Order 14 Rule 5 of CPC, even after amendment, gives sufficient power to the court below to add any additional issue before passing of a decree. Thus, even if the issues were framed after hearing the parties and if some necessary issue is left out to be framed, it can very well be framed before passing of decree. Hence, I find that the objection taken by Shri R.D. Agrawal is devoid of substance.
8. Resultantly, the impugned order cannot sustain judicial scrutiny. The order dated 21.01.2012 is accordingly set aside. The application preferred under 4 W.P.No.1195/2012 Order 14 Rule 5 of CPC is allowed. The court below is directed to frame additional issue with regard to limitation. The Court below is further directed to proceed further from that stage, in accordance with law.
9. Petition is allowed to the extent indicated above. No cost.
(SUJOY PAUL)
(ra) Judge