Delhi High Court
S. Surjit Singh Sahni vs Brij Mohan Kaur on 16 January, 1997
Equivalent citations: 1997IIAD(DELHI)266, 65(1997)DLT670, 1997(40)DRJ639, 1997RLR249
Author: R.C. Lahoti
Bench: R.C. Lahoti
JUDGMENT R.C. Lahoti, J.
(1) The plaintiff-petitioners are aggrieved by order dated 26.10.95 passed by the trial court whereby their application under Order 14 Rule 5 of the Civil Procedure Code seeking framing of an additional issue has been rejected.
(2) The plaintiffs have filed a suit for declaration of title, recovery of possession and issuance of permanent preventive injunction. The suit property is 33, Tagore Park, Delhi. One of the averments made in the plaint is that the property was acquired under a perpetual sub-lease deed got executed in favour of late Smt.Inder Kaur who died on 20.8.89. The entire transaction was carried out by plaintiff No.1 as well as his father late Sardar Gian Singh Sahni in the name of late Smt.Inder Kaur (wife of late Sardar Gian Singh and mother of the plaintiffs) and thus it was a benami transaction within a Hindu Joint Family. Late Smt.Inder Kaur was only a benami holder of the demised plot on behalf of plaintiff No.1 as well as on behalf of other co-parceners of the Joint Hindu Family including the plaintiffs and the defendants. Para 1 of the plaint alleges late S.Gian Singh having paid money from his S.B. A/c. to acquire the plot in the name of his wife Smt.Inder Kaur. The averment has been denied by the defendants who, it appears, are setting up exclusive title in late Smt.Inder Kaur and devolution of title upon them by virtue of a will executed by her.
(3) The issues were framed on 22.1.90, but the Court refused to frame an issue on the plea above said forming an opinion that the plea as to benami could neither be allowed to be raised nor an issue framed thereon in view of the provisions of Benami Transactions (Prohibition) Act, 1988.
(4) Though the impugned order does not in so many words make a reference to the decision of the Supreme Court in Mithilesh Kumari & Anr. VS. Prem Behari Khare Air 1089 Sc 1247, but it goes without saying that it was the decision in the mind of the learned trial court persuading him not to frame the issue.
(5) The decision of the Supreme Court in Mithilesh Kumari's case (supra) has been over-ruled by Constitution Bench of the Supreme Court in Rajgopal Reddy VS. Padmini Chander Shekharan, .
(6) Prompted by the latest law laid down by the Supreme Court, the plaintiffs moved the application which has suffered dismissal by the impugned order.
(7) A perusal of the several provisions contained in Order 14 of the Civil Procedure Code would be apposite. An issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Every such proposition shall form the subject of a distinct issue. Primarily it is the obligation of the Court to frame the issues. Failure on the part of the Court may be remedied by either party inviting attention of the Court to the need of framing such an issue either by participating in the process of settlement of issues or by moving an application under Order 14 Rule 5 of the CPC. It is obligatory on the part of the Court to frame an issue once it is satisfied that an issue which should have been framed was not framed. If the trial court fails in framing an issue or fails to remedy its earlier failure then even an appellate court is vested with power of framing an issue under Rule 25 of Order 41 of the CPC.
(8) It cannot be denied that the issue which was proposed to be framed by the plaintiffs and requested to the trial court was based on the pleadings of the parties wherein a material proposition of fact was alleged by the plaintiffs and denied by the defendants. However, the prayer has been rejected by the trial court forming an opinion that the plaintiffs should have gone in revision against the order dated 22.1.90 or sought for a review of that order which having not been done, it did not lie with the plaintiffs to move such an application at a later stage of the proceedings. In other words, the trial court has held the prayer for framing an issue made by the plaintiffs barred by the principle of res-judicata.
(9) The learned counsel for the defendant-respondents has supported the impugned order by raising several contentions. He submits that unless there be an error of jurisdiction, this Court would not interfere with an order passed by his subordinate court; that the issue as proposed by the plaintiffs does not arise from the pleadings and an issue in any different form having not been proposed before the trial court cannot be sought to be framed for the first time from the High Court; that the plaintiff-petitioners having permitted the earlier order to have achieved a finality they cannot now be permitted to raise the same contention afresh at a later stage of the same proceedings; and that a mere change of law cannot be a ground for review of an earlier order. A number of decisions including Shri M.L.Sethi VS. Shri R.P.Kapur, and Patel Naranbhai Jinabhai VS. Patel Gopaldas Venidas, were relied on by the learned counsel for the respondents.
(10) I see no substance in the opposition offered. The whole thing has to be looked at from the point of view of meeting the ends of justice. As I have already said primarily it was the obligation of the Court to have framed an issue on the plea raised in the pleadings and vital to the decision of the case. The Court refused to frame an issue because of the law laid down by the Supreme Court and holding the field then. Later on the law changed with the result that the plea which could not have been tried then became triable now. In fact with the pronouncement of the Supreme Court in P.Rajgopal Reddy (supra) the Court could have, rather should have, itself framed an issue on the plea which became triable. The court did not do so. The plaintiffs invited the attention of the Court to its obligation of framing an issue emanating from Rule 1 of Order 14 of the CPC. The prayer could not have been denied. I make it clear that the plaintiffs cannot be assumed to be seeking review of the earlier order dated 22.1.90 and therefore the considerations relevant for deciding an application under Order 47 Rule 1 of the Civil Procedure Code have no relevance. It is true that principles of res-judicata and constructive res-judicata are applicable to different stages of the same proceedings, but that does not mean that an issue not framed or refused to be framed earlier cannot be framed by the Court at a later stage of the suit if it is satisfied that the issue must be framed. I say that the issue should have been framed for two reasons. Firstly, as held in Rajgopal Reddy's case (supra) : "A mere look at the above provisions shows that the prohibition under Section 3(1) is against persons who are to enter into benami transactions and it has laid down that no person shall enter into any benami transaction which obviously means from the date on which this prohibition comes into operation i.e. with effect from September 5, 1988. That takes care of future benami transactions."
(11) Secondly, sub-Section (1) and (2) of Section 3 of the Benami Act read as under :- "3.Prohibition of benami transactions. -- (1) No person shall enter into any benami transaction. (2) Nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter."
(12) In Nand Kishore Mehra VS. Sushila Mehra, , it has been held :- "NEITHER the filing of suit nor taking of a defense in respect of either the present or past benami transaction involving the purchase of property by a person in the name of his wife or unmarried daughter is prohibited under sub-sections (1) and (2) of Section 4 of the Act."
(13) In Subhash Chandra Gupta VS. Gyanchand & Ors., 1994(1) Mpjr 29, a Division Bench of Madhya Pradesh High Court has held :- "A property held benami has to be distinguished from a property held by a joint Hindu family property though standing in the name of a member of joint Hindu family. In view of such clear distinction between `property held benami' and Joint Hindu Family Property standing in name of a member of such family, it will be a misnomer to say that the property standing in the name of a member of the Joint Hindu Family alleged to have been acquired by the Joint Hindu Family with the aid of Joint Family property or funds amounts to pleading a case of benami. A suit for declaration that a property standing in the name of a member thereof is not suit to recover property held benami within the meaning of Section 4 of the Benami Act."
(14) The plaintiffs may ultimately lose if they fail in substantiating their case but that cannot be a ground for refusing to try their plea by refusing to frame an issue thereon.
(15) However, I cannot resist observing that the issue as suggested by the plaintiff-petitioners is not completely in conformity with the pleadings. But lacuna in drafting of an issue by the plaintiff does not bar jurisdiction of Court to frame such issue as it ought to be framed.
(16) For the foregoing reasons, the revision is allowed. The impugned order rejecting the plaintiff's application under Order 14 Rule 5 of the Civil Procedure Code is set aside. The trial court is directed to frame an issue on the facts averred by the plaintiffs in para 5 of the plaint (details and past history whereof are to be found in paragraphs 1 to 4 of the plaint).
(17) No order as to the costs.