Gujarat High Court
Mangalbhai Kanjibhai Parmar vs Jethabhai Dhulabhai Thakor on 3 July, 2018
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/14471/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14471 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MANGALBHAI KANJIBHAI PARMAR
Versus
JETHABHAI DHULABHAI THAKOR
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Appearance:
MR MRUGEN K PUROHIT(1224) for the PETITIONER(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6,1.7
DS AFF.NOT FILED (R)(71) for the RESPONDENT(s) No. 1.1
MR. YOGENDRA THAKORE(3975) for the RESPONDENT(s) No.
1.2,1.3,1.4,1.5,1.6,1.7,1.8,2.1,2.2,2.3,3,4,5.1,5.2,5.3,5.4,5.5,5.6,5.7,6
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 03/07/2018
ORAL JUDGMENT
1. This petition, under Article 227 of the Constitution of India, arises from the order dated 27.03.2015 below Page 1 of 13 C/SCA/14471/2015 JUDGMENT application Ex. 68 passed by the learned (Ad-hoc) Civil Judge, in Regular Civil Suit No. 92 of 1997. By the aforesaid order, the petitioners' - defendants' application Ex. 68 for framing an additional issue was rejected.
2. The respondents filed a suit being Regular Civil Suit No. 92 of 1997 against the present petitioners. In the suit so filed, it was the case of the plaintiffs that since their economic position was weak, they were in need of finances. In order to obtain a loan from the original defendant who after death is now being represented by his heirs and legal representatives, on 18.06.1987 on execution of a mortgage deed, the land was mortgaged to the original defendant and a sum of Rs.48,000/- was given by the original defendant as financial assistance. The possession of the land was given to the original defendant. According to the deed of mortgage, on repayment of the amount advanced, the defendant was to release the mortgaged land. The plaintiffs were willing to pay the amount, however, the original defendant was not willing to release the land by executing a deed of redemption and therefore a declaration was sought that the defendant be directed to enter into a reconveyance deed in favour of the plaintiffs and hand over vacant and peaceful possession to the plaintiffs.
2.1 The original defendant filed a written statement in such suit. In paragraph no. 13 of such written statement, he had contended that since 1975 the defendant was carrying out agricultural operations in part of the land. Half of the yield of such agricultural produce was given to the plaintiffs. The land was being cultivated as a tenant under the tenancy laws Page 2 of 13 C/SCA/14471/2015 JUDGMENT and they were possessing such lands as a tenant. On 18.06.1987, it was the case of the defendant that they had kept the tenancy rights in abeyance and advanced a loan of Rs.48,000/- and executed a mortgage deed. The land was mortgaged in favour of the defendant. In such written statement, it was pleaded that the defendant's tenancy right was kept in abeyance and that even before such mortgage deed was executed and land mortgaged to the original defendant, the defendant was cultivating the land as tenant and therefore in accordance with Section 85A of the Gujarat Tenancy and Agricultural Lands Act, 1948 (for short 'the Tenancy Act'), the suit involving the rights of tenancy was to be decided by an authority under this Act for determination on such issue and ought to be referred to the tenancy Court.
2.2 By the impugned order dated 27.03.2015, the trial Court rejected such application. According to the trial Court, though the defendant had raised such a plea in the written statement, on examination of the deed of mortgage at Ex. 60, 7/12 extract at Ex. 61, it was found that there was nothing to show that the defendant was a tenant under the tenancy laws. The learned trial Court further observed that even in the Caveat Application at Ex. 63, the defendant had not raised the plea of he being a tenant and further even in the reply to the notice at 80/1, such a plea was not raised. In other words, no documents were produced on record to show the defendant's tenancy rights. Merely because a plea of tenancy was taken, it was not incumbent for the trial Court to frame an additional issue as prayed for. Therefore, it was not necessary for the trial Court to frame an issue that the civil suit be referred to the tenancy Court under Section 85A and the issue that "does Page 3 of 13 C/SCA/14471/2015 JUDGMENT the defendant prove that before the land was mortgaged with him whether the defendant in such land was a tenant?" should be an issue that be added to the issues already framed by the trial Court. It is this order that is under challenge before this Court.
3. Mr. Mrugen Purohit, learned advocate appearing on behalf of the petitioners submitted that the learned trial Judge committed an error in rejecting the application wherein the original defendant had prayed for framing of an additional issue. Mr. Purohit drew my attention to paragraph no. 13 of the written statement and contended that a specific plea was raised that the defendant was a tenant and therefore the appropriate forum under Section 85A of the Tenancy Act was not the Civil Court and the suit be referred to the tenancy Court.
3.1 Mr. Purohit contended that under Order 14 Rule 5 of the Code of Civil Procedure, 1908, the trial court ought to have framed an additional issue. The Court committed an error in not doing so merely because such a plea was not available on the documents produced by the defendant on record. In support of his submissions, Mr. Purohit relied on a judgement in the case of Uttar Gujarat Vij Company Ltd. and Another vs. Dhulabhai Kodarbhai Vankar and Another reported in 2009(9) GLH 1. It was his submission that without framing the issue, the Court could not have given a specific finding on the question of tenancy. Rather than giving such a finding, the Court ought to have first framed the additional issue and then left it to the Court to decide such an additional issue along with the other issues.
Page 4 of 13C/SCA/14471/2015 JUDGMENT 3.2 Mr. Purohit has further relied on a decision of this Court in the case of Naynaben Babubhai vs. Keti Farmaji Paliya reported in 2014(2) GLR 1814. This was in support of his submission that the Court can under Order 14 Rule 5 of the Code, at any time before passing a decree, frame additional issues or amend issues already settled and that can be done on the basis of the written statement or documents produced.
4. Mr. Yogendra Thakore, learned advocate appearing on behalf of the respondent - original plaintiffs has supported the order of the trial Court. According to Mr. Thakore, certain dates are relevant for the issue. Mr. Thakore pointed out that the civil suit was filed on 29.09.1997. By Ex. 41, the trial Court framed five issues in the year 2004. 4 years after such framing of issues, the original defendant on 19.12.2008 preferred the application at Ex. 68. This clearly suggested that such an application was filed only with a view to derail the hearing of the suit. Once issues were framed based on the evidence that was produced by the defendant, the Court had rightly exercised its discretion in not framing an additional issue as prayed for by the defendant, based on the documents brought by the defendant himself. Inviting my attention to the findings arrived at by the trial Court at page 18, Mr. Thakore submitted that the Court had specifically come to the conclusion that on reading the documents at Ex. 60 i.e. the deed of mortgage, the 7/12 extract at Ex. 61, the Caveat Application at Ex. 63 and reply to the notice at Mark 80/1 such documents did not show the relationship of a tenancy between the defendant and the plaintiff. Merely because such a plea was taken in the written statement would not suffice.
Page 5 of 13C/SCA/14471/2015 JUDGMENT No evidence to prove prima facie relationship of a tenancy was on record and therefore the application was rightly rejected.
5. To appreciate the controversy on record, it will be necessary to reproduce the relevant provisions of Order 14 of the Code. The same read as under:
1. Framing of issues-- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.(2)
Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party denied by the other shall form the subject of distinct issue.
(4)Issues are of two kinds :
(a)issues of fact,
(b)issues of law.
(5)At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and [181][after examination under rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.
(6)Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.
2. Court to pronounce judgment on all issues.-
(1) Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case Page 6 of 13 C/SCA/14471/2015 JUDGMENT or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to--
(a) the jurisdiction of the court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
3. Materials from which issues may be framed.- The court may frame the issues from all or any of the following materials:--
(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties;
(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;
(c) the contents of documents produced by either party.
4. Court may examine witnesses or documents before framing issues.- Where the court is of opinion that the issues cannot be correctly framed without the examination of some person not before the court or without the inspection of some document not produced in the suit, it may adjourn the framing of issues to a day not later than seven days and may (subject to any law for the time being in force) compel the attendance of any person or the production of any document by the person in whose possession or power it is by summons or other process.
5. Power to amend and strike out, issues.- (1) The Court may at anytime 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 Page 7 of 13 C/SCA/14471/2015 JUDGMENT 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.
5.1 Reading these provisions would suggest that issues in a suit arise when there is a material proposition of fact or law which is affirmed by one party and denied by the other. Such proposition of law or fact by the plaintiff or the defendant are to be alleged in order to show their right. Such material proposition affirmed by one party and denied by the other forms the subject of a distinct issue. It can either be an issue of fact or an issue of law. The Court shall proceed to frame issues at the first hearing of the suit, on reading the plaint and the written statement after hearing the parties and ascertaining upon what material proposition of facts or law the parties are at a variance. If the defendant at the first hearing makes no defence, the Court is not required to frame and record issues. The Court in accordance with Rule 2 of Order 14 may either dispose of the case on a preliminary issue or pronounce judgements on all issues. The suit can either be disposed of on an issue of law only or it may decide other issues. Reading of Rule 3 suggests that the materials on which the issues are framed may be on the basis of allegations made on oath by parties or on the basis of pleadings or answers to interrogatories or on the basis of documents produced by either parties. Before framing issues, the Court may examine witnesses or documents. Under Rule 5, the Court may at any time before passing any decree either amend the issues or frame additional issues on such terms as Page 8 of 13 C/SCA/14471/2015 JUDGMENT it thinks fit and all such amendments or additional issues as may be necessary for determining the matters in controversy shall be so made or framed.
5.2 In other words, the conjoint reading of the rules as aforesaid would suggest that the Court can frame an additional issue or amend an issue on the basis of material available i.e. either on the basis of allegations made on oath, allegations made in the pleadings or on the basis of contents of documents. It is open for the Court to frame additional issues or amend issues at any time before passing the decree.
6. From the examination of the facts on record, what emerges is that it was the specific case of the petitioner defendant in the written statement at paragraph no. 13 that while entering into a contract of mortgage the right of the defendant of the tenant was kept in abeyance. He essentially was in possession of the land as a tenant who was giving half of the yield to the plaintiff in consideration of tenancy. It was under this context that application Ex. 68 was made for framing additional issue that "does the defendant prove that before the land was mortgaged with him, whether the defendant in such land was a tenant and had therefore the present suit ought to be referred to the tenancy Court under Section 85A of the Tenancy Act?"
7. Reading together the provisions of Rules 3 & 5 of Order 14 of the Code, it becomes evident that either of the three materials i.e. allegations made on oath by the parties, allegations made in pleadings or in answers to the interrogatories, the contents of the documents produced by Page 9 of 13 C/SCA/14471/2015 JUDGMENT either parties can form the basis of framing an issue. Under Rule 5 of Order 14, the Court can at any time frame an additional issue or amend an issue. It is in this context that the judgement in the case of Naynaben Babulal (supra) needs to be referred to.
"25. In this view of the matter, when the defendants had filed the written statement and in the written statement, the defendants had raised certain contentions against maintainability of the suit in light of the provisions contained under Bombay Tenancy and Agricultural Lands Act, 1948 then, in light of the position which emerges from the conjoint reading of Rule 1, Rule 2 and Rule 3 of Order XIV, the Court, at the stage when the written statement was filed or was taken on record with permission, settled the issues after taking into account the contentions in the written statement.
26. At this stage and in background of provision under Rules 1, 2 and 3 of Order XIV, it would be appropriate to take into account provision under Rule 5 of Order XIV which reads thus:
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.
27. The provision employs the expression '& & at any time before passing a decree' and the provision confers power on the Court to amend or frame additional issue/s. The provision also confers discretion to even strike out any issue which, in its Page 10 of 13 C/SCA/14471/2015 JUDGMENT view is wrongly framed.
28. A conjoint reading of the aforesaid provisions under Order XIV it emerges that Court has to take care while settling issues in light of allegations made in the pleadings, answers in the interrogatories, contents of documents and to ensure that all issues necessary to be answered for finally deciding the suit and the dispute in the suit are settled.
29. The expressions 'may at any time before passing a decree' in sub-rule (i) and sub-rule (ii) of Rule 5 of Order XIV, are of wide amplitude and confer wide discretion on the Court to either frame additional issues or to amend the issues already settled or to even delete any issue which is wrongly framed or introduced at any time before decree. Of course, such jurisdiction has to be exercised judiciously and not ipse dixit or without legally sustainable justification.
30. In this context, the provision under Rule 3 of Order XIV becomes relevant inasmuch as if, despite material (either the written statement or documents produced by either parties or answers to interrogatories or the allegations made on oath by the parties; etc.) being available on record, any issue is not framed by the Court while settling the issues, then the Court would not be powerless and can amend, add or strike out issues at any stage, before the decree is passed."
8. Thus, merely because the documents at Ex. 60, 61 & 63 do not reveal the relationship of a tenancy between the plaintiff and the defendant, it would not obviate the petitioner defendant's claim to raise such an issue because the pleading in the written statement is material enough for the Court to frame such an issue. Such an issue, therefore, can be framed as an additional issue at any time before a decree is passed. The learned trial Court therefore could not have held Page 11 of 13 C/SCA/14471/2015 JUDGMENT otherwise holding that since the documents prima facie did not show the right of the defendant under the tenancy, no issue could be framed as held in the case of Uttar Gujarat Vij Co. Ltd. (supra). Such a finding by the trial Court could not have been given without framing that issue as an additional issue.
9. The trial Court in coming to such a conclusion has drawn support from the judgement in the case of Hargovan Keshav vs. Mansing Thakorbhai & Others reported in 2000(3) GLR 2063. Mr. Thakore has drawn my attention to paragraph no. 10 of the judgement wherein the Court observed that in absence of any material produced to show that the tenancy was created there was no question of making a reference under Section 85A of the Tenancy Act. The Court held that the Civil Court was not bound to refer such an issue in absence of the party establishing a prima facie case.
10. In my opinion when the judgement in the case of Hargovan Keshav (supra) is seen, the Court has to consider whether the discretion has been exercised by the Court in accordance with law. Provisions of Order 14 Rules 1 to 5 of the Code explicitly make it clear that even on the basis of the pleadings in the written statement, the Court can frame an additional issue and need not desist from doing so merely because documents do not so suggest a stand which has otherwise been pleaded by the defendant in the written statement. In the facts of the case, when a specific pleading has been made by the defendant with regard to his tenancy rights, the application made at Ex. 68 for framing an additional issue that "does the defendant prove that before Page 12 of 13 C/SCA/14471/2015 JUDGMENT the land was mortgaged with him whether the defendant in such land was a tenant and had therefore the present suit ought to be referred to the tenancy Court under Section 85A of the Tenancy Act?" should have been granted and the additional issue as prayed for should have been added to the issues already framed by the trial Court at Ex. 22.
11. Accordingly, the order of trial Court dated 27.03.2015 below Ex. 68 is quashed and set aside. Application Ex. 68 filed by the defendant - petitioner herein is allowed and the following issue be added as an additional issue below Ex. 22 as under:
"Does the defendant prove that before the land was mortgaged with him, whether the defendant in such land was a tenant and had therefore the present suit ought to be referred to the tenancy Court under Section 85A of the Tenancy Act?"
12. Further, it is clarified that the aforesaid issue shall be decided by the trial Court in the suit along with other issues and not as a preliminary issue. Accordingly, the petition is allowed. Rule is made absolute.
(BIREN VAISHNAV, J) DIVYA Page 13 of 13