Himachal Pradesh High Court
Raminder Singh Kapany vs Parminder Singh Kapany on 21 November, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 49 of 2018 .
Judgment Reserved on 18th
November, 2019
Date of decision: 21.11.2019
Raminder Singh Kapany ...Petitioner.
Versus
Parminder Singh Kapany ...Respondent
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes
For the Petitioner: Mr.G.C. Gupta, Sr. Advocate with Ms. Meera
Devi, Advocate.
For the Respondent: Mr.Sudhir Thakur, Sr. Advocate with Mr.Karun
Negi, Advocate.
Vivek Singh Thakur, Judge
Petitioner herein is plaintiff in the suit and respondent is defendant who shall be, hereinafter, referred as plaintiff and defendant respectively.
2 Present petition has been preferred by plaintiff against impugned order dated 4.1.2018 passed by learned Civil Judge (Junior Division), Kandaghat, District Solan, whereby application, filed by plaintiff under Order 14 Rule 5 of Civil Procedure Code (hereinafter referred to as CPC) for framing additional issues with respect to 'Will' propounded by defendant, to resist the claim of plaintiff and assert his right on the property, 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 21/11/2019 20:24:52 :::HCHP 2 has been rejected, mainly on the ground that after allowing the application of plaintiff, filed for amendment of plaint earlier, plaintiff had filed amended plaint on 4.3.2017 whereas issues were framed on 24.3.2009 but despite .
filing of amended plaint, plaintiff did not pray for framing of additional issues, rather had preferred another application for amendment of plaint which was dismissed on 1.9.2017 and for not praying for framing of additional issues, as proposed now at that time, plaintiff is not entitled for making prayer for framing of additional issues at this belated stage and it is also observed in impugned order that by filing this application, plaintiff intends to get issues framed on those points which are not in pleadings nor have been challenged and even if for the sake of argument, if it is considered that Will, with regard to which additional issues have been proposed, has been challenged, then also at this belated stage, his prayer cannot be accepted for framing additional issues and in support of rejection of application, arguments of learned counsel for the defendant were also referred wherein it was contended that issues were framed in presence of learned counsel for the parties and at that time no prayer or objection qua any issue was raised and application of plaintiff was considered to have been filed only for exhausting the provisions of law to fulfill the requirements, which plaintiff would not get effected by way of filing an application for amendment of plaint earlier which has already been dismissed.
3 It is contended on behalf of plaintiff that defendant has claimed his right on suit property on the basis of Will No. 46 dated 3.9.2002 in his ::: Downloaded on - 21/11/2019 20:24:52 :::HCHP 3 written statement and thereafter with permission of Court, replication was filed by plaintiff re-asserting his rights on the basis of Will dated 21.8.2005 relied upon by plaintiff in plaint to claim right on suit property and as the .
replication is part of pleadings, wherein it is pleaded that old Will is not genuine and valid Will and even if there is another Will in favour of defendant the same stands revoked by Will dated 21.8.2005, it was incumbent upon the Court, for duty cast thereupon under CPC, to frame issue with respect to 'Will' propounded by defendant and right to frame issues can never be waived as framing of issues, primarily, is duty of Court. It is also contended that case is yet at the stage of leading the evidence, therefore, there is no question of belated stage and moreover, the issue with respect to a document which has been asserted by one party and denied by other party can be framed at any time if not framed at earlier point of time and the issue related to Will No. 46 dated 3.9.2002, which is relevant to decide real controversy between the parties, rightly and finally, is necessary to be framed.
4 In rebuttal, it is contended on behalf of defendant that Will No. 46 of 2002 has not been challenged either in original plaint or in amended plaint despite the fact that reference of the said 'Will' has been made in written statement and there is no specific denial of the said Will No.46 and even if it is considered that denial of the said Will is there in replication, the said denial in replication would not give right to frame issues with respect to the said 'Will' as replication has not been supported by an affidavit as ::: Downloaded on - 21/11/2019 20:24:52 :::HCHP 4 required under Order VI Rule 15 (4) of CPC. It is contended that in paras 3 and 8 of replication, there is denial simplicitor, whereas according to Order VIII Rule 5, every allegation of fact is to be denied specifically and denial of .
Will in replication is an evasive denial as defined in Order VIII Rule 4 and therefore, plea of plaintiff for framing additional issues on this point is not sustainable. It is also contended that according to provisions of Order XIV Rule 3 of CPC, for framing of issues, there must be allegations on oath and/or allegations made in pleadings or in answer to interrogatories delivered in suit or contents of documents produced by either party and as the said material is lacking in present case for want of specific denial of Will No. 46 of 2002, there is no ground for framing the proposed additional issues.
5 It is canvassed on behalf of defendant that plaintiff had filed an application under Order 6 Rule 17 CPC, for amendment of plaint, in the year 2010, wherein, amongst other amendments, amendment in prayer clause, seeking declaration that family settlement deed No. 86 dated 16.5.2002 and Will No. 46 dated 3.9.2002 are illegal, null and void and are result of coercion, undue influence, misrepresentation of facts, fraud etc and thus do not confer any right, title or interest on the defendant and revenue record changed on the basis thereof, depicting the defendant to be owner of land bearing Khasra Nos. 111, 112 and 113, was rejected by the trial Court and the said rejection was upheld by this High Court and therefore, the plaintiff is now debarred from seeking amendment of issues, as proposed on account ::: Downloaded on - 21/11/2019 20:24:52 :::HCHP 5 of estoppel. It is also contended that 'Will' which has not been assailed in plaint cannot be put under challenge by framing of issues as proposed that too when there is evasive denial of same in replication filed without support .
of an affidavit as in the pleadings, there is insufficient material to frame the additional issue and lastly, the reasons assigned by the trial Court for rejecting the prayer of plaintiff have been asserted to be valid and correct. 6 Order XIV of CPC with settlement of issues and determination of suit on issues of law or on issues agreed upon. Rule 1 of Order XIV of CPC provides that issues arise when a material proposition of fact or law is affirmed by one party and denied by other and such material propositions are those which the plaintiff must allege in order to show a right to sue or a defendant must alleged in order to constitute his defence and duty has been cast upon the Court to ascertain material propositions of fact or of law on which the parties are at variance, after reading the plaint and written statement if any and after examination under Rule 2 of Order X and after hearing the parties or their pleaders thereupon, and to proceed to frame and record the issues on which right decision of case appears to depend. 7 The Apex Court, in Makhan Lal Bangal vs. Manas Bhunia and others reported in (2001)2 SCC 652, while dealing with a matter related to election petition, has observed that an election petition is like a civil trial and at the stage of framing of issues, the real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the Court reflecting the pleadings of parties pinpoints into ::: Downloaded on - 21/11/2019 20:24:52 :::HCHP 6 issues, the disputes on which two sides differ. It is further observed that correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be .
decided and referring Order XIV of CPC, it has been held that an obligation is cast on the Court to read the plaint/petition and written statement/counter, if any, and then determine, with the assistance of learned counsel for the parties, material proposition of fact and/or law on which parties are at variance and that an issue arises when material proposition of fact and/or law is affirmed by one party and denied by other and also such issues would be framed and recorded on which the decision of the case shall depend and further that parties and their counsel are bound to assist the Court in the process of framing of issues but such duty of counsel does not belittle the primary obligation cast on the court and it is for the Presiding Judge to frame sufficiently expressive points as an omission to frame proper issues may be a ground for remanding the case for re-trial subject to prejudice having been shown to have been resulted by omission.
8 It is also observed by the Apex Court in aforesaid Makhan Lal Bangal's case that evidence in the trial shall be confined to issues and pleadings and no evidence on controversies not covered by issues, and pleadings, shall normally be admitted, for each party leads evidence in support of those issues the burden of proving which lies on him and object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is and ::: Downloaded on - 21/11/2019 20:24:52 :::HCHP 7 judgment, then proceeding issue-wise, would be able to tell precisely how the dispute was decided.
9 Order XIV Rule 1 CPC provides framing of issues on material .
propositions on fact or law which is affirmed by one party and denied by other and as provided under Order VIII Rule 5 CPC the denial may be specific or by necessary implication or by stating the fact or law not admitted. In present case, plaintiff has asserted his right on the basis of Will of 2005 and defendant is relying upon Will No. 46 of 2002 in order to constitute his defence. Therefore, both are denying the right of each other put-forth on the basis of respective Will relied by opposite party. Plaintiff is showing his right to property on the basis of Will of 2005 which definitely denies the right of defendant on the basis of another Will of 2002 relied upon by defendant as has also been pleaded in replication. Therefore, in view of Order XIV rule 1 Sub-rule (2) of CPC assertion of right by plaintiff on the basis of Will of 2005 and assertion of right by defendant on the basis of Will No. 46 of 2002 are material propositions of facts on which the parties are at variance and as both Wills are different and distinct and they constitute different material propositions affirmed by one party and denied by other, distinct issue has to be framed on each material proposition. 10 Order XIV rule 5 CPC empowers the Court to frame an issue not only on the basis of plaint and written statement but also on the basis of material before it after examination under Order X rule 2 and after hearing the parties and their pleaders and thereupon proceed to frame and record ::: Downloaded on - 21/11/2019 20:24:52 :::HCHP 8 the issue on which the right decision of case appears to depend. In present case, the plaintiff is alleging his right on the basis of one Will, whereas defendant is asserting his right on the basis of another Will. Therefore, .
considering the controversy between the parties, a separate and distinct issue is required to be framed with respect to each Will as decision of the case shall depend upon the evidence of parties led to substantiate their claim, for reasons as observed by the Apex Court supra in Makhan Lal Bangal's case that the evidence shall be confined to issues and pleadings and no evidence on controversies not covered by issues and pleadings shall be admitted.
11 According to Order VIII rule 5 of CPC, every allegation of fact in plaint, if any, denied specifically, or by necessary implication or stated to be not admitted in the pleadings of defendant shall be taken to be admitted except as against a person under disability and in proviso thereof, it is provided that Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. The same principle shall be applicable in the case of written statement. In this rule, besides specific denial there is reference of denial by necessary implication or by stating to be not admitted in the pleadings. In the present case, defendant is claiming his right on the basis of Will No. 46 of 2002, whereas plaintiff is asserting his right on the basis of subsequent Will dated 21.8.2005. Therefore, there is denial of claim of defendant, put-forth on the basis of Will No. 46, by necessary implication. In replication, in para 3, there is specific denial of ::: Downloaded on - 21/11/2019 20:24:52 :::HCHP 9 execution of another Will in favour of defendant with further averments that alleged Will is not genuine and valid Will and even if there is any Will in favour of defendant, the same stands revoked by Will dated 21.8.2005.
.
Therefore, there is general denial of execution of any Will in favour of defendant and also specific denial of execution of alleged Will as execution thereof has been denied in pleadings, and its genuineness and validity has also been disputed. Proviso to this rule also empowers the Court to exercise its discretion to require any fact so admitted by opposite party to be proved otherwise than by such admission.
12 It is also contended on behalf of defendant that for want of filing of an affidavit in support of replication, the replication is incomplete and therefore, it cannot be treated as a part of pleading and therefore, there is no rebuttal of claim put-forth by defendant relying upon Will No. 46 of 2002 on record and thus for want of denial of pleadings of defendant, there is no material proposition of fact in dispute on record with respect to Will No. 46 of 2002. An issue can be framed on admitted fact, if considered necessary by the Court and therefore even in absence of replication issue can be framed. But for discussion hereinafter replication in present case is part of pleading. 13 In view of exposition of law in this regard as clarified by Apex Court in G.M.Siddeshwar vs. Prasanna Kumar reported in (2013)4 SCC 776, that a plain reading of Order 6 rule 15 CPC suggests that a verification of plaint is necessary and in addition to verification, the person verifying the plaint is "also" required to file an affidavit in support of pleadings and further ::: Downloaded on - 21/11/2019 20:24:52 :::HCHP 10 that requirement of filing of an affidavit also does not mean that verification of pleadings is incomplete if affidavit is not filed, as the affidavit, in this context, is a stand-alone document. Therefore, duly verified replication filed .
in present case, without accompanying an affidavit, as required under Order 6 Rule 15(4) CPC does not mean that it is incomplete.
14 It is also an admitted fact that replication in the present case was filed with permission of Court. The Apex Court in K.Laxmanan vs. Thekkayil Padmini and others reported in (2009)1 SCC 354 has held that pleadings as defined under the provision of Rule 6 of Order 1 of CPC consist only of a plaint and written statement and plaintiff can file a replication in respect to the plea raised in written statement which also becomes part of pleadings if allowed to be filed by Court, but mere non-filing of replication does not and could not mean that there has been admission of facts pleaded in written statement and the Apex Court had considered the denial of assertion of defendant on the basis of specific objection in the form of denial raised in the affidavits filed in respect of injunction applications which were accepted on record. In that case, pleadings regarding execution of gift deed were stated for the first time in written statement filed by one of defendants.
15 In pronouncement of K. Laxman's case, the Apex Court referring its earlier pronouncement of case i.e. Rosammal Issetheenammal Fernandez vs. Joosa Mariyan Fernandez reported in (2000)1 SCC 189 has observed that in considering the question that whether there is any ::: Downloaded on - 21/11/2019 20:24:52 :::HCHP 11 denial or not, it should not be casually considered as the said finding has very important bearing on the admissibility of a document which has important bearing on the rights of both the parties. As observed hereinbefore .
for proving a document evidence is to be led and as discussed supra, for leading the evidence there must be pleadings and issue framed by the Court for admitting the evidence. Therefore, issue with regard to Will No.46 of 2002 relied upon by defendant in his written statement is necessary in present case.
16 Order VI rule 15 (4) CPC provides that person verifying the pleadings shall also furnish an affidavit in support of his pleadings which is clear in itself that pleadings are different than an affidavit and affidavit is to be filed in support of pleadings and therefore, affidavit is not part of pleadings but is an independent document to be filed in support of pleading. At the time of consideration, under Order XIV rule 1 CPC, for framing issues, pleadings are to be seen only and filing or non-filing of affidavit in support of pleadings which is independent of pleadings is not material as it is curable technical defect.
17 For application of doctrine of curability on principles contained in CPC, as introduced by the Apex Court in T.M.Jacob vs. C.Poulose and others reported in (1999)4 SCC 274, omission in filing the affidavit in support of pleadings is curable and such defect is not of such a fatal nature to attract non-framing of issues at threshold of trial. ::: Downloaded on - 21/11/2019 20:24:52 :::HCHP 12 18 Considering its earlier pronouncement in case Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore reported in AIR 1964 SC 1545, the Apex Court in R.P.Moidutty vs. P.T.Kunju Mohammad .
and another reported in (2000)1 SCC 481 has reiterated that defect in verficiation is curable defect. Therefore, on the same analogy defect in filing the affidavit or non-filing of affidavit in support of pleadings is also a curable defect.
19 Even if it is considered that for non-filing of affidavit, replication is not to be considered until or unless the affidavit is filed, then also there is sufficient material on record which constitutes material proposition upon which parties are at variance and findings whereupon are necessary for deciding the case rightly and completely which warrants framing of issue under Order XIV rule 1 (5).
20 Otherwise also, Order XIV rule 3 CPC provides to frame the issues not only on the basis of allegations made on oath and/or allegations made in pleadings, but it also provides, under Clause (c) framing of issues on the basis of contents of documents produced by either party. 21 In present case, plaintiff is placing reliance on Will of 2005, whereas defendant is relying upon Will No. 46 of 2002. There are two documents placed on record for establishing the right by respective party which are in conflict with each other. Therefore, findings thereon are to be returned by the trial Court. For that purpose, leading of evidence by parties shall be necessary and for admitting the evidence with regard to those ::: Downloaded on - 21/11/2019 20:24:52 :::HCHP 13 documents, there must be an issue framed in that regard. Thus for aforesaid reasons also framing of issues with respect to Will 46 of 2002 is warranted in present case.
.
22 It is settled position in law that onus of proving the Will is on propounder and propounder had to prove the legality of execution and genuineness of the said Will by proving absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and signatures of testator. This principle of law has been reiterated by the Apex Court in K. Laxmanan vs. Thekkayil Padmini and others reported in (2009)1 SCC 354.
23 The Apex Court, in Bharpur Singh and others vs. Shamsher Singh reported in (2009)3 SCC 687, has observed that legal principles in regard of proof of Will are no longer res-intergra and a Will must be proved having regard to provisions contained in Clause (c) of Section 63 of Succession Act 1925 and Section 68 of Indian Evidence Act 1872 in terms whereof the propounder of Will must prove its execution by examining one or more attesting witness. It is further qualified by the Apex Court that where, however, the validity of Will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on caveator. 24 Considering its earlier pronouncement in Jaswan Kaur vs. Amrit Kaur reported in (1977)1 SCC 369, the Apex Court in S.R.Srinivasa and others vs. S.Padmavathamma reported in (2010)5 SCC 274, has reiterated that primary onus to prove the Will is on its propounder. ::: Downloaded on - 21/11/2019 20:24:52 :::HCHP 14 25 In present case, there are two Wills. One is relied upon by plaintiff, another by defendant. Will relied upon by defendant is prior in time, whereas Will relied upon by plaintiff is claimed to be last Will. Will of 2005, .
relied upon by plaintiff is to be proved by him, onus to prove Will No. 46 of 2002 is upon the defendant. For proving a Will, evidence shall be admissible on framing of issue with regard to the said Will. In case Will propounded by plaintiff is not found valid or genuine then definitely question will arise before the Court as to whether property in dispute is to be inherited on the basis of succession or on the basis of Will relied upon by defendant and for that purpose, necessary evidence must be on record and to lead such evidence, onus initially relies upon the defendant, but for want of framing of issues in this regard there would be no occasion for defendant to lead such evidence. Undoubtedly, the plaintiff would have right to rebut the evidence led by defendant on this issue.
26 In aforesaid discussion, I find that trial Court has committed a mistake in fact and law by rejecting the prayer for framing the additional issue with respect to Will No. 46 of 2002, which will definitely be causing prejudice to plaintiff and therefore, for observation made herein-above, the reasons assigned for rejecting the application are not valid. Therefore, impugned order dated 4.1.2018 passed by learned Civil Judge (Junior Division), Kandaghat, District Solan is set aside and the trial Court is directed to proceed further after framing the additional issue with respect to ::: Downloaded on - 21/11/2019 20:24:52 :::HCHP 15 Will No. 46 of 2002 dated 3.9.2002 relied upon by defendant, as proposed, in accordance with law.
27 Petition stands allowed in aforesaid terms. All pending .
miscellaneous application(s), if any, also stands disposed of. 28 Record be sent back henceforth and parties are directed to appear before the trial Court on 9th December, 2019.
(Vivek Singh Thakur),
November 21,2019 Judge.
(ms)
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