Chattisgarh High Court
Smt. Shyambala vs Kamal Kishore Modi on 7 November, 2016
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
W.P.(Art.227)No.514/2015 Page 1 of 4 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (Art. 227) No.514 of 2015 Smt. Shyambala, aged 42 years, W/o Shri Suresh Agrawal, R/o Old Power House, In front of Rama Residency, P.O. & P.S. Torwa, Revenue and Civil Distt. Bilaspur (C.G.) {Defendant No.9(2)} ---- Petitioner Versus 1. Kamal Kishore Modi, S/o Late Kanhiyalal Modi, aged about 66 years, R/o D-204, Krishna Vihar, Vidyanagar, Bilaspur, Revenue and Civil Distt. Bilaspur (C.G.), Pin 495 004. (Plaintiff) 2. Dinesh Modi, S/o Late Kanhaiyalal Modi, aged about 49 years, R/o In front of Government School, Dayalband, P.O. & P.S. Tarbahar, Revenue and Civil Distt. Bilaspur (C.G.) (Def. No.2) 3. Smt. Laxmi Agrawal, aged about 64 years, D/o Late Kanhaiyalal Modi, R/o E/C 4/4 Executive Colony, Budharaja, P.O. Budharaja, P.S. Sambalpur, Revenue & Civil District Sambalpur (Odisa), Pin 768 001. (Def. No.3) 4. Smt. Usha Khemka, W/o Santosh Khemka, D/o Late Kanhaiyalal Modi, aged about 62 years, R/o Dipti Medical, 07 Tarachand Dutt Street, P.O.T.D. Street, Kolkata, West Bengal, Pin 700 073. (Def. No.4) 5. Smt. Aruna Jhanjhadia, W/o Ashok Kumar, D/o Late Kanhaiyalal Modi, aged about 57 years, R/o Mrwaripara, Sambalpur, P.S. Sambalpur, Revenue & Civil Distt. Sambalpur (Odisa), Pin 768 001. (Def. No.5) 6. Smt. Manju Agrawal, W/o Shri Vinod Kumar, D/o Late Kanhaiyalal Modi, aged about 54 years, R/o H.I.G. B/139, Phase 3, Kalinga Vihar, Chand, P.O. Chand, Raurkela, Revenue & Civil Distt. Raurkela (Odisa), Pin 768 002. (Def. No.6) 7. Smt. Premlata Jalan, W/o Shri Paresh Jalan, D/o Late Kanhaiyalal Modi, aged about 50 years, R/o Samleswari Fertilizer, Khetrajpur, P.O. Sambalpur, P.S. Sambalpur, Revenue & Civil Distt. Sambalpur (Odisa), Pin 768 001. (Def. No.7) W.P.(Art.227)No.514/2015 Page 2 of 4 8. Smt. Sarla Modi, W/o Late Basant Modi, Daughter in law of Late Kanhaiyalal Modi, aged about 55 years, R/o Radheshyam Pachariwale, Budhwari Road, Dongargarh, P.O. & P.S. Dongargarh, Revenue & Civil Distt. Rajnandgaon (C.G.), Pin 494 003. (Def. No.8A) 9. Smt. Sharda Agrawal, W/o Shri Ghanshyam Agrawal, Grand daughter of Late Kanhaiyalal Modi, aged about 31 years, R/o Shyam Aaloo Bhandar, Khetrajpur, P.O. Sambalpur, P.S. Sambalpur, Revenue & Civil Distt. Sambalpur (Odisa), Pin 768 001. (Def. No.8B) 10. Smt. Sharadha Agrawal, W/o Shri Naurang Agrawal, Grand daughter of Late Kanhaiyalal Modi, aged about 28 years, R/o Shyam Aaloo Bhandar, Khetrajpur, P.O. Sambalpur, P.S. Sambalpur, Revenue & Civil Distt. Sambalpur (Odisa), Pin 768 001. (Def. No.8C) ---- Respondents
For Petitioner: Mr. K.A. Ansari, Senior Advocate with Mr. Avinash Mishra, Advocate.
For Respondent No.1: Mr. Amit Kumar, Advocate.
Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 07/11/2016
1. By the impugned order, the trial Court has rejected the application under Order 14 Rule 5 of the CPC filed by defendant No.9 for framing two additional issues.
2. Mr. K.A. Ansari, learned Senior Advocate appearing for the petitioner / defendant No.9 would submit that express and clear plea of estoppel and res judicata has been taken before the trial Court but no issue has been framed and in absence of issue relating to estoppel and res judicata, serious prejudice would be caused during the course of trial.
3. On the other hand, Mr. Amit Kumar, learned counsel W.P.(Art.227)No.514/2015 Page 3 of 4 appearing for the plaintiff / respondent No.1 would submit that no such plea of estoppel and res judicata is made out and therefore the trial Court is absolutely justified in not framing the questions of plea of estoppel and res judicata.
4. I have heard learned counsel for the parties and perused the impugned order and also gone through the written statement filed by defendant No.2 / 9 Shyambala Agrawal.
5. Defendant No.2 / 9 has taken express plea of estoppel against the plaintiff in paragraph 2 of the plaint as well as in paragraph 32 for dismissal of suit, but the trial Court has not framed any issue, though issues have been framed as back as on 5-3- 2013.
6. The plaintiff's objection that no such question of res judicata or estoppel arises can be considered at the time of trial and parties are free to lead evidence and make submission before the trial Court and issues on the plea of res judicata and estoppel ought to have been framed by the trial Court considering the clear cut plea raised by defendant No.2 / 9. Therefore, the impugned order rejecting the application under Order 14 Rule 5 of the CPC is set aside subject to payment of cost of Rs.3,000/- to the plaintiff. The trial Court is directed to frame issue of res judicata and estoppel in addition to the issues framed on 5-3-2013 and thereafter, consider and conclude the suit within a period of four months from the date of receipt of a copy of this order, as the suit was filed on 14- 10-2010.
W.P.(Art.227)No.514/2015Page 4 of 4
7. With the aforesaid observation, the writ petition stands disposed of. No order as to cost(s).
Sd/-
(Sanjay K. Agrawal) Judge Soma