Gujarat High Court
Lhs Of Nanjibhai Kavdabhai Damor vs Damor Amrabhai Manglabhai on 7 July, 2025
NEUTRAL CITATION
C/SCA/8908/2025 ORDER DATED: 07/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8908 of 2025
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LHS OF NANJIBHAI KAVDABHAI DAMOR & ORS.
Versus
DAMOR AMRABHAI MANGLABHAI & ORS.
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Appearance:
RAVI B SHAH(5346) for the Petitioner(s) No.
1,10,1.1,1.2,1.3,1.4,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/07/2025
ORAL ORDER
1. Heard learned advocate Mr.Ravi B. Shah for the petitioners.
2. The present application is filed under Article 227 of the Constitution of India seeking following relief/s:-
"A. Admit and allow this petition;
B. issue writ of certiorari and/or any other writ in the nature of certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 13/03/2025 passed by the learned Add. Civil Judge at Meghraj, below application at Exhibit 56 in Regular Civil Suit No.17 of 2020;
C. Direct the Learned Trial Court to frame the additional issue as proposed below Exhibit-56 and proceed with the Regular Civil Suit No.17 of 2020 accordingly.
D. pending admission hearing and final disposal of this petition, Hon'ble Court may be pleased to stay the further proceedings this of Regular Civil Suit No.17 of 2020 pending before the learned Add. Civil Judge at Meghraj, Dist. Arvalli;
E. pleased to grant ex-parte order in terms of prayer clause (C) Page 1 of 8 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:30:45 IST 2025 NEUTRAL CITATION C/SCA/8908/2025 ORDER DATED: 07/07/2025 undefined hereinabove;
F. pleased to award costs of this petition;
G. pass such other orders that may be just and necessary in the facts and circumstances of the case in favour of the petitioners."
3. THE SHORT FACT OF THE CASE 3.1. The petitioners herein are the original defendants, whereas the respondents herein are the original plaintiffs, who filed Regular Civil Suit No. 17 of 2020, pending before the Civil Judge, Meghraj, and thereby prayed for possession of the suit property, which is in occupation of the defendants. The suit is filed for a declaration and injunction, as well as prayed in the suit.
3.2. The defendants have contested the suit by filing their written statement, wherein they have contended that they are in settled legal possession of the suit property since last more than 60 years and the plaintiffs have no right to dispossess them without due process of law.
3.3. After completion of the pleadings of the parties, the Trial Court framed, in all, 10 issues on the 15th of March 2022 below Exhibit 33 in the suit. The defendants appear to Page 2 of 8 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:30:45 IST 2025 NEUTRAL CITATION C/SCA/8908/2025 ORDER DATED: 07/07/2025 undefined have filed the impugned application below Exhibit 56 under Order 14, Rule 5 of the Civil Procedure Code, 1908 (hereinafter referred to as the 'CPC'), on the 23rd of February 2024, thereby requesting the Trial Court to frame an additional issue, which reads as under:
"Whether the defendants prove that the defendants are in settled possession of half of the suit land and the plaintiffs have no right and authority to dispossess them without following due process of law?"
3.4. After hearing the parties, the Trial Court rejected the impugned application by observing that the issue which has been suggested by the defendants to be incorporated is in the form of prayer for which no application has been filed and, as such, the issues were framed on the 15th of March 2022, whereas the impugned application came to be filed on the 23rd of February 2024 at the stage of the cross-examination of the plaintiff, which, according to the Trial Court, is a delaying tactic on the part of the defendants to delay the trial.
4. Being aggrieved by and dissatisfied with the impugned order passed by the Trial Court, the defendants have preferred Page 3 of 8 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:30:45 IST 2025 NEUTRAL CITATION C/SCA/8908/2025 ORDER DATED: 07/07/2025 undefined the present application.
5. SUBMISSIONS OF THE PETITIONERS-DEFENDANTS 5.1. Learned Advocate, Mr. Shah, would submit that the Trial Court has committed a serious error of law by not framing the additional issue as suggested, which is framed from the pleadings of the defendants.
5.2. Learned Advocate, Mr. Shah, would further submit that the defendants are in settled legal possession of half of the suit land, which is clearly stated in their written statement and in fact, considering the prayer made in the suit, the plaintiffs are also admitting the possession of the defendants; thereby, the issue which has been suggested by the defendants requires to be framed in accordance with law and tried in the suit during the course of the trial.
5.3. Learned Advocate, Mr. Shah, would further submit that the Trial Court has erroneously observed that in the absence of any application being filed seeking relief in the suit, no such additional issue can be framed. It is submitted that the Trial Court is required to frame issues as per the pleadings Page 4 of 8 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:30:45 IST 2025 NEUTRAL CITATION C/SCA/8908/2025 ORDER DATED: 07/07/2025 undefined of the parties and the controversy germane to the pleadings, and there is no requirement under law to file a counterclaim or set-off for an issue in favour of a defendant to be framed. 5.4. Learned Advocate, Mr. Shah, would further submit that as per the provisions of Order 14 of the CPC, issues can be framed at any stage of the proceeding and the Trial Court has ample power to frame issue even before the pronouncement of the judgment, and as such, the impugned application could not have been rejected on the ground of delay in filing it.
5.5. Making the above submissions, earned Advocate, Mr. Shah, requests this Court to allow the present application.
6. No other and further submissions are made.
7. ANALYSIS
8. The facts which are stated hereinabove are not in dispute. It is an undisputed fact that neither any counterclaim nor any set-off has been filed by the defendants countering the suit filed by the plaintiffs seeking possession of the suit land.
9. It is true that in the written statement in para 21 Page 5 of 8 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:30:45 IST 2025 NEUTRAL CITATION C/SCA/8908/2025 ORDER DATED: 07/07/2025 undefined (running page 47), the defendants have stated that they are in settled possession of half of the suit land and they cannot be dispossessed by the plaintiffs without due process of law.
10. An alternative defense is also set up that they and their predecessor themselves are in settled possession of the suit land since last more than 60 years; thereby, the defendants cannot be dispossessed as the suit is time-barred.
11. Now, considering the issue suggested by the defendants to be framed by the Trial Court, it is in the form of the some relief which is sought in the suit, in the absence of their counterclaim.
12. Prima facie, in the absence of any counterclaim and/or set-off submitted by the defendants in the suit, no relief can be granted in favour of the defendants.
13. Be that as it may, even a bare reading of the suggested issue prayed for by the defendants to be incorporated also suggests that the defendants should not be dispossessed by the plaintiffs from the suit land without following due process of law. It is deplorable that while filing such an impugned Page 6 of 8 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:30:45 IST 2025 NEUTRAL CITATION C/SCA/8908/2025 ORDER DATED: 07/07/2025 undefined application, the defendants have not taken the pains to see the relief prayed for in the suit.
14. Prayer No. 1 in the plaint of the suit itself suggests that the plaintiffs are claiming back vacant and peaceful possession of the suit land from the defendants, for which the suit has been filed, which is nothing but the due process of law followed by the plaintiffs to get possession of the suit land.
15. In view of the aforesaid, the issue suggested by the defendants to be incorporated is misconceived and, in the absence of any counterclaim/set-off filed by the defendants, it could not have been framed merely because it has been pleaded in the written statement, especially when it is not the case of the defendants that they have been threatened by the plaintiffs to be dispossessed from the suit land without any due process of law being followed.
16. Thus, considering the aforesaid facts and circumstances of the case, the proposed issue suggested by the defendants to be incorporated is not at all controversy involved in the suit, as the plaintiffs have already filed the suit for getting peaceful Page 7 of 8 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:30:45 IST 2025 NEUTRAL CITATION C/SCA/8908/2025 ORDER DATED: 07/07/2025 undefined and vacant possession of the suit land from the defendants, there is no requirement for framing such an issue, as other issues would take care of the prayers made in the suit itself.
17. In light of the aforesaid, this Court is not at all impressed by any of the submissions made by Learned Advocate, Mr. Shah, and the same are hereby rejected.
18. CONCLUSION 18.1. The upshot of the aforesaid observations, discussion, and reasons is that I do not find any merit in the present application, which lacks merit, requires to be rejected, and is hereby REJECTED. No order as to costs.
(MAULIK J.SHELAT,J) MOHD MONIS Page 8 of 8 Uploaded by MOHD MONIS(HC01900) on Mon Jul 07 2025 Downloaded on : Mon Jul 07 23:30:45 IST 2025