Himachal Pradesh High Court
Mohammad Mustafa vs Akbar Ali And Ors on 16 November, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 475 of 2018
Decided on: 16.11.2018
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Mohammad Mustafa ...........Petitioner/defendant
Versus
Akbar Ali and Ors. ..........Respondents/plaintiffs
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner : Mr. Sunil Chaudhary, Advocate.
For the Respondents : Nemo
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Sandeep Sharma, Judge (oral):
Being aggrieved and dis-satisfied with order dated 20.9.2018, passed by the learned Senior Civil Judge, Court No.1 Sundernagar, District Mandi, H.P., whereby an application under Order 14 Rule 5 read with Section 151 CPC, praying therein for framing of additional issues, having been filed on behalf of the petitioner/defendant (hereinafter referred to as the defendant) came to be dismissed, defendant has approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, praying therein to allow the aforesaid application and issue direction to the court below to frame additional issue as farmed in the application referred here in above.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 21/11/2018 22:56:49 :::HCHP 22. Briefly stated facts as emerge from the record are that by way of an application under Order 14 Rule 5 read with Section 151 CPC, .
defendant prayed for framing of additional issue to the effect that Khadim Ali, died in the year, 1947. Plaintiffs filed suit for declaration and permanent prohibitory injunction under Sections 34, 37 and 38 of the Specific Relief Act, praying therein for decree of declaration to the effect that mutation No. 810 dated 3.10.1990, is null and void and does not confer any right on the defendant and similarly, the alleged Will of Khadim Ali be declared null and void being concocted one. Aforesaid suit having been filed by the plaintiff came to be resisted by way of written statement filed by defendant No.1.
3. Close scrutiny of pleadings adduced on record by the parties suggests that the plaintiff claimed succession qua the estate of one Khadim Ali. As per pleadings available on record, Khadim Ali died in the year, 1947. Respondents/plaintiffs claimed that Khadim Ali never executed any Will and Will, if any, is null, void, wrong and illegal because parties belong to Sunni community and are governed by the Mohammadan law and as such, Khadim Ali could not have executed the Will. Plaintiffs also challenged the Will and subsequent mutation No. 810, dated 3.10.1990. Defendant contested the suit on the ground that Khadim Ali bequeathed the land in favour of the defendant and ::: Downloaded on - 21/11/2018 22:56:49 :::HCHP 3 mutation No. 810 dated 3.10.1990, is legal and void. On the pleadings of the parties, court below framed following issues:-
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"1.Whether the Will executed by deceased Khadam Ali in favour of the defendants could not have been executed by the deceased and therefore, it is invalid? OPP.
2.Whether the plaintiffs are entitled to decree for declaration qua the ownership and possession, as prayed for? OPP.
3.Whether the plaintiffs are also entitled to decree for consequential relief of permanent prohibitory injunction? OPP.
4.Whether the suit is not maintainable? OPD.
5.Whether the plaintiffs have no locus standi? OPD.
6.Whether the suit is barred by limitation? OPD."
"Order 14 Rule 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."
4. Record further reveals that after framing of issues, evidence was led on record by the respective parties and at the time of final arguments, defendant moved an application under Order 14 Rule 5 read with Section 151 CPC, praying therein for framing of additional issue as has been taken note herein above. In the application, defendant claimed that issue qua the fact that Khadim Ali died in the year, 1947, has not been framed, but careful perusal of the pleadings adduced on record by the respective parties clearly suggest that there is no dispute at ::: Downloaded on - 21/11/2018 22:56:49 :::HCHP 4 all with regard to the death of Khadim Ali in the year, 1947. Plaintiffs in para-3 of the plaint has specifically stated that Khadim Ali died in the .
year, 1947, which fact has not been specifically denied by the defendant in his written statement and as such, learned court below rightly concluded that order 14 Rule 1 clearly provides that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. In the case at hand, there is no dispute at all inter-se parties with regard to the factum of death of Khadim Ali as is evident from the pleadings available on record, rather dispute inter-se parties is only qua the Will alleged to have been executed by Khadim Ali and issue qua the same has been already framed as has been reproduced herein above.
5. Leaving everything aside, this Court finds that court below on the basis of pleadings adduced on record by the respective parties has already framed relevant issues qua the legality and validity of Will alleged to have been executed by the Khadim Ali. Careful perusal of impugned order reveals that prior to filing of application at hand, defendant had also filed an application under Order 8 Rule 1-A(3) CPC, seeking therein permission to place on record documents, but same was dismissed, whereafter defendant approached this Court by way of CMPMO No. 483 of 2016, which was also dismissed. Order passed by this Court was taken to Hon'ble apex Court by way of SLP, but same was also ::: Downloaded on - 21/11/2018 22:56:49 :::HCHP 5 dismissed. Impugned order passed by the court below further suggests that even in evidence, when defendant and plaintiff No.3 stepped into .
the witness box as PWs, he categorically deposed that Khadim Ali died in 1947, but not even single suggestion was ever put to PW1 as to when Khadim Ali died in the year, 1947 or not.
6. Consequently, in view of the detailed discussion made herein above, this Court has no hesitation to conclude that impugned order passed by the court below is based upon proper appreciation of law as well as facts and as such, does not call for any interference and as such, same is upheld. Accordingly, present petition is dismissed being devoid of any merits.
16th November, 2018 (Sandeep Sharma),
manjit Judge
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