NEUTRAL CITATION
C/SCA/15888/2019 ORDER DATED: 01/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15888 of 2019
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PUROHIT BHANUPRASAD PARSHOTTAMDAS
Versus
PUNJABHAI AMICHANDBHAI PATEL
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Appearance:
MR JV JAPEE(358) for the Petitioner(s) No. 1,2,3,4
MR RATHIN P RAVAL(5013) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 01/11/2023
ORAL ORDER
1. Heard learned advocate Mr. J. V. Japee for petitioners and learned advocate Mr. Rathin P. Raval for respondents.
2. By way of this writ petition under Article 227 of the Constitution of India, the present petitioners have challenged the impugned order dated 29.07.2019 passed below Exhibit 46 by the learned Court (Ad-hoc) Additional Civil Judge, Himmantnagar, District-Sabarkantha in Regular Civil Suit No.54 of 2016.
3. The prayers have been made by the learned advocate for the petitioners in the petition are as under:-
"a. Your Lordships may be pleased to allow this petition;Page 1 of 13 Downloaded on : Mon Nov 06 20:33:50 IST 2023
NEUTRAL CITATION C/SCA/15888/2019 ORDER DATED: 01/11/2023 undefined b. Your Lordships may be pleased to quash and set-aside the impugned order dated 29.07.2019 below Exhibit-46 passed by the learned 4th (Adhoc) Additional Civil Judge, Himmatnagar District Sabarkantha in RCS No.54 of 2016 and be pleased to issue appropriate direction to frame the preliminary issue on the aspects contained in the application vide Exhibit-46; c. Your Lordships may be pleased to stay further proceedings of RCS No.54 of 2016 pending before the Court of learned 4 th (Adhoc) Additional Civil Judge, Himmatnagar District Sabarkantha pending admission, hearing and final disposal of this petition.
d. Your Lordships may be pleased to grant any other relief/s as may deem fit proper, in the interest of justice".
4. Learned advocate for the petitioners has submitted that the respondents herein i.e. original plaintiffs had filed Regular Civil Suit No.54 of 2016 before the learned Principal Senior Civil Judge, Himmantnagar for declaration and permanent injunction. It is submitted by the learned advocate for the petitioners that the suit is for different survey numbers, more particularly for the lands bearing Survey No.351, Survey No.432, Survey No.433 and Survey No.436 of the Mouje Pedmala, Taluka Himmantnagar. The prayers in the plaint are for a relief of permanent injunction and restraining the defendants from snatching away the possession of the suit properties. It is further submitted by the learned advocate for the petitioners that after Page 2 of 13 Downloaded on : Mon Nov 06 20:33:50 IST 2023 NEUTRAL CITATION C/SCA/15888/2019 ORDER DATED: 01/11/2023 undefined the order of Exhibit-5 i.e. an injunction application, granting in favour of the plaintiffs, the present petitioners preferred an application Exhibit-46 seeking dismissal of the suit on the principles of mis-joinder of causes of action and insufficient court fee stamp. It is further submitted that a preliminary issue was sought to be framed.
4.1. It is further submitted that the land bearing Survey No. 351 and Survey No.432 were purchased by the plaintiffs from the father of defendant No.3 vide registered sale deeds dated 06.12.1989 and land bearing Survey No.433 and Survey No.436 were purchased by the plaintiffs from the father of the defendant Nos.1 and 2 vide registered sale deeds dated 06.12.1989. The learned advocate for the petitioners submitted that by clubbing all different lands, the suit is hit by the principle of a mis-joinder of causes of action. It is submitted that for different lands and for different sale deeds, one suit is not maintainable. It is further submitted that in the written statement, the contention of mis- joinder of the parties has been raised by the defendants. It is the Page 3 of 13 Downloaded on : Mon Nov 06 20:33:50 IST 2023 NEUTRAL CITATION C/SCA/15888/2019 ORDER DATED: 01/11/2023 undefined submission of learned advocate for the petitioners that one suit is filed for different lands purchased by the plaintiffs from the different owners. It is also submitted that the lands which were purchased are also having its separate boundaries and therefore, the single suit for different properties is not maintainable. The submission of learned advocate for the petitioners is that the order impugned is a non-speaking order and no reasons are assigned by the learned Trial Court while deciding application Exhibit-46. Learned advocate for the petitioners has placed reliance on the decision of the Hon'ble Supreme Court in the case of Shivnarayan (Dead) By Legal Representatives & Ors. Vs. Maniklal (Dead) Through Legal Representatives & Ors., (2020) 11 SCC 629.
5. Per contra, the learned advocate for the respondents has objected to the grant of relief sought for on various grounds. The first objection is that the scope of this Court under Article 227 of the Constitution of India is very limited and the order impugned Page 4 of 13 Downloaded on : Mon Nov 06 20:33:50 IST 2023 NEUTRAL CITATION C/SCA/15888/2019 ORDER DATED: 01/11/2023 undefined does not require any interference. Secondly in absence of a specific defence in the written statement with regard to the mis- joinder of causes of action, no preliminary issue can be framed. Learned advocate for the respondents has drawn the attention of this Court from the written statement, which is placed on record, that there is no dispute with regard to the allegation of mis- joinder of causes of action and non-maintainability of the suit on the ground. It was also submitted that in absence of any specific defence, no issue, much less, preliminary issue can be framed. Further it is submitted that after injunction application was decided in favour of present respondents, such frivolous application was submitted.
5.1. In support of his submissions, the learned advocate for the respondents have placed reliance on the decision of the Hon'ble Supreme Court in the case of Maharshi Packaging Machines Private Limited Versus Maharshi Udyog Thru Partner, Bhagvat Vitthaldas Shah, 2020 (0) AIJ-GJ 242198.
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6. Having considered the rival submissions, in every civil suit, plaintiff avers the cause of action for filing suit. The cause of action is a bundle of facts. What is to be considered while deciding application Exhibit-46 is that what is the nature of prayer and what is the cause of action for filing the suit. On perusal of the plaint, it transpires that the allegation is that the defendants and his supporters Narhariprasad Manaklal Gour and Mehulkumar Narhariprasad Gour trespassed into the lands in question and threatened the plaintiffs to dispossess the plaintiffs from the suit properties. Even the prayers in the plaint are for a relief of permanent injunction and declaration. Issues are framed on the basis of disputed facts. It is noteworthy to refer the provisions of Order 14 of the Code of Civil Procedure which is reproduced as under:-
"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 and denied by the other shall form the subject of a distinct issue.
Page 6 of 13 Downloaded on : Mon Nov 06 20:33:50 IST 2023 NEUTRAL CITATION C/SCA/15888/2019 ORDER DATED: 01/11/2023 undefined (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 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".
6.1. Thus, issues are framed on the basis of the pleadings, more particularly issues are framed on a material proposition of fact or law affirmed by one party and denied by other. It is also apposite to take into consideration the provisions of Order 14 Rule 1(6) of the Code of Civil Procedure which is as under:-
"(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". 6.2. For framing any issue of fact, a specific and direct denial of a disputed fact has to be pleaded by the other party. In the present case, there is no specific and direct contention of the non-maintainability of the suit on the principles of mis-joinder of causes of action. It is a well settled principle that the cause of Page 7 of 13 Downloaded on : Mon Nov 06 20:33:50 IST 2023 NEUTRAL CITATION C/SCA/15888/2019 ORDER DATED: 01/11/2023 undefined action is a bundle of facts even for framing a preliminary issue, the defendant has to raise a specific and direct objection with regard to a fact which is denied by him. In the present case, in absence of the contention about the non-maintainability of the suit on the ground of mis-joinder of causes of action, the application is misconceived. More particularly injunction application, which came to be allowed in favour of the plaintiff at the final stage of the hearing of the suit, such an application for framing a preliminary issue is filed by the defendant. So far as the issue of mis-joinder of causes of action and mis-joiner of parties, the same cannot be tried as preliminary issues since the issue involves examination of facts and without leading evidence, suit cannot be decided on a preliminary issue.
7. In the case of Shiv Narayan (supra), the facts are totally different. The suit was for the properties situated at Indore and Bombay and the challenge was also made with regard to a WILL whereas in the present case, the lands in question are situated in the same village and it seems that the sellers of the Page 8 of 13 Downloaded on : Mon Nov 06 20:33:50 IST 2023 NEUTRAL CITATION C/SCA/15888/2019 ORDER DATED: 01/11/2023 undefined lands in question were the brothers. Thus, the aforesaid decision is not applicable to the present case.
7.1. Mis-joinder of causes of action is a purely question of fact which can only be decided after a full-fledged trial and after giving ample opportunities to all the parties to lead their respective evidences.
8. In the case of Maharshi Packaging Machines Private Limited (supra), wherein, the Division Bench of this Court have observed in No.6.5, 6.6 and 6.7 as under:
"6.5 Thus, the plaintiff has specifically averred that "the plaintiff submits that the registration of the plaintiff's said trademark is in force and is valid till date". While the defendant No.1-petitioner herein filed its elaborate Written statement in response to the case set up by the plaintiff in the plaint, on an attentive reading of the pleas taken in defence, it could be seen that the assertion of the plaintiff stating about the validity of registration of its trademark is not specifically traversed. The averments in paragraph-9 in the plaint are dealt with in paragraph-6 of the Written statement. The trademark "is in force and valid till date" is not specifically traversed or denied in the said paragraph or elsewhere in the written statement, even as several general contentions are raised.
6.6 Whether the plaintiff's trademark is validly registered or not is a material proposition which the plaintiff has alleged in his plaint, which forms part of right to sue and to seek relief by the plaintiff. The defendant ought to have denied the same specifically in order to seek a framing of Issue on that count. There is no such denial or traversing Page 9 of 13 Downloaded on : Mon Nov 06 20:33:50 IST 2023 NEUTRAL CITATION C/SCA/15888/2019 ORDER DATED: 01/11/2023 undefined by the plaintiff on that score. Learned Commercial Court rightly reasoned that the plaintiff has made the clear averments regarding the validity of its trademark which has not been controverted by the defendant in the Written statement.
6.7 Therefore, when the pleadings did not permit the trial court to raise the Issue on the validity of registration of the trademark, since such assertion on that count by the plaintiff was not found to have been denied by the defendant, the order passed by the Commercial Court refusing to frame the Issue was justified. The decision in Patel Field Marshal Agencies (supra) would not automatically therefore apply. The framing of issue was to be based on the pleadings in that regard to be present in the background. When necessary pleadings to raise the Issue were not found, the Issue on the validity of registration was rightly not framed and application Exh.116 could be said to have been rightly rejected".
9. In the case of Shivaji Balaram Haibatti Versus Avinash Maruthi Pawar, 2017 (0) AIJEL-SC 61255, in paragraph No.26, the Hon'ble Apex Court has observed as under:-
"26. First, the respondent (defendant) had not raised such plea in his Written statement. In other words, the respondent did not set up such defense in the Written statement. Second, the Trial Court, therefore, had no occasion to frame any issue on such plea for want of any factual foundation in the written statement. Third, the Trial Court and First Appellate Court, in these circumstances, had no occasion to record any finding on this plea either way. Fourth, in the light of these three reasonings, the High Court ought to have seen that such plea really did not arise for consideration because in order that any question is involved in the case, the party concerned should lay its factual foundation in the pleading and invite finding on such plea. Fifth, the High Court failed to see the case set up by the respondent in his Written statement. As mentioned above, the defense of the respondent was that he had denied the appellant's title over the suit shop and then set up a Page 10 of 13 Downloaded on : Mon Nov 06 20:33:50 IST 2023 NEUTRAL CITATION C/SCA/15888/2019 ORDER DATED: 01/11/2023 undefined plea of adverse possession contending that he has become the owner of the suit shop by virtue of adverse possession, which according to him, was from time immemorial".
10. Thus, relying upon the observations made by the Hon'ble Apex Court as well as Hon'ble Division Bench of this Court, I am of the view that in absence of a foundation in the written statement, no issue, much as preliminary issue can be framed for deciding the suit. As much as the allegations of the petitioners cannot be decided by framing preliminary issue. Further, the scope of under Article 227 of the Constitution of India is very limited in the light of paragraph No.18 of the judgment of the Hon'ble Apex Court in the case of M/S Garment Craft Vs. Prakash Chand Goel; 2022 LawSuit(SC) 34, paragraph No.18 is hereby reproduced as under:-
"18. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal [Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217]. The jurisdiction Page 11 of 13 Downloaded on : Mon Nov 06 20:33:50 IST 2023 NEUTRAL CITATION C/SCA/15888/2019 ORDER DATED: 01/11/2023 undefined exercised is in the nature of correctional1 jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
11. In the totality of facts and circumstances of the case, I am of the view that the order dated 29.7.2019 passed below Exhibit 46 by the learned Court (Ad-hoc) Additional Civil Judge, Himmantnagar, District-Sabarkantha in Regular Civil Suit Page 12 of 13 Downloaded on : Mon Nov 06 20:33:50 IST 2023 NEUTRAL CITATION C/SCA/15888/2019 ORDER DATED: 01/11/2023 undefined No.54 of 2016 does not require any interference and the same is in consonance with the provisions of law and hence, the present petition is meritless. Accordingly, the petition is dismissed.
12. Interim relief, if any, granted shall stand vacated forthwith.
(D. M. DESAI,J) RINKU MALI Page 13 of 13 Downloaded on : Mon Nov 06 20:33:50 IST 2023