Bombay High Court
Zahedabi W/O Abdul Razzaque Shete ... vs Bilkis S/O Mohd. Ashif Sheikh And ... on 14 March, 2022
Bench: Manish Pitale
1/8 27-WP 5010.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 5010 OF 2021
Zahedabi w/o Abdul Razzaque Shete and others vs. Bilkis S/o. Mohd.
Ashif Sheikh and another
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. Masood Shareef, Advocate for petitioner.
Mr. R. L. Khapre, Senior Advocate assisted by Mr. D. R.
Khapre, Advocate for respondent No.2.
CORAM : MANISH PITALE J.
DATE : 14/03/2022
By this petition, the petitioners (original
defendant Nos.1 to 5) have challenged the order
passed by the Court of District Judge - 4, Nagpur
(hereinafter referred to as the 'Appellate Court'),
whereby an application filed under Order 41 Rule 25
of the Civil Procedure Code (CPC) stood rejected and
an application for Review of the said order also stood
rejected.
2. The petitioners had moved the said
application before the Appellate Court, contending
that vital issues germane to the controversy between
the parties were not framed by the Court of Civil
Judge Junior Division (hereinafter referred to as 'trial
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Court') while deciding the suit for declaration,
partition and separate possession filed by the
respondent No.1. It was submitted that vital issue
pertaining to the original defendant No.3 being a
minor, was not framed when the suit was decreed by
judgment and order dated 17/11/2015. It was
contended that therefore, the proposed issues on
behalf of the petitioners ought to have been directed
to be framed and power should have been exercised
by the Appellate Court under Order 41 Rule 25 of the
CPC to call for finding on such issues.
3. This application was opposed on behalf of
the contesting respondent by contending that the
issues proposed on behalf of the petitioner were
covered by the original issues framed by the trial
Court and that, in any case, the parties were aware
and alive to the question pertaining to the alleged
status of defendant No.3 being a minor. On this
aspect of the matter, there was discussion in the
judgment and order of the trial Court and that
therefore, the application deserved to be rejected.
4. By the impugned order dated
24/06/2021, the Appellate Court rejected the
application for framing of additional issues and for
decision afresh by the trial Court. Aggrieved by the
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same, the petitioners filed application for review
which also stood rejected by order dated
29/09/2021.
5. Mr. Masood Shareef, learned counsel
appearing for the petitioners referred to Order 41
Rule 25 of the CPC and contended that the
requirement of the aforesaid provision was clearly
satisfied in the present case, because the trial Court
had failed to frame a specific issue to determine the
question of fact regarding the status of defendant
No.3 being a minor. This, according to the learned
counsel appearing for the petitioners, went to the
very root of the matter and that the Appellate Court
erred in refusing to exercise power under Order 41
Rule 25 of the CPC. Review application was also
dismissed without reference to the facts and
circumstances of the present case and application of
law pertaining to the aforesaid provision.
6. Mr. Khapre, learned Senior Advocate
appearing for the contesting respondent submits that
a perusal of the judgment and order passed by the
trial Court would show that not only was the
aforesaid issue, upon which the petitioners are
placing much reliance, discussed but, reference was
also made to the material brought on record in that
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context by the rival parties. On this basis, it was
submitted that when the parties were fully alive to
the aforesaid issue and findings were rendered by the
trial Court after discussion, there was no scope for
exercise of power under Order 41 Rule 25 of the CPC.
It was submitted that the aforesaid application was
filed on behalf of the petitioners only with a view to
delay the proceedings before the Appellate Court. It
was also submitted that when the petitioners failed to
insist upon framing of specific issue in respect of the
said aspect of the matter, it can be said that they had
abandoned the said issue. Reliance was placed on
judgment of this Court in the case of Sk.Ibrahim s/o
Mohamood and others vs. Sk.Mehmood s/o Sk.Vazir
AIR 2003 Bombay 357, for the proposition that when
the parties were fully aware and alive to the issue,
there was no scope for exercising power for
remanding the matter to the trial Court.
7. Heard learned counsel for the rival parties
and perused the material on record. A perusal of the
application filed under Order 41 Rule 25 of the CPC
on behalf of the petitioners would show that much
emphasis is placed on the claim of the petitioners that
defendant No.3 was a minor and that this had a vital
impact on the controversy between the parties. It
was also claimed that the said aspect of the matter
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required the trial Court to frame specific issue in that
regard, which the trial Court had failed to do and in
that context, specific issues were proposed on behalf
of the petitioners.
8. As noted above, the said application was
opposed on behalf of the contesting respondent.
9. A perusal of the material on record,
particularly, the judgment and order dated
17/11/2015, passed by the trial Court whereby the
suit was decreed shows that in paragraphs 46 to 50,
the trial Court has specifically discussed the said
aspect pertaining to the status of defendant No.3
being a minor at the time of execution of oral Wakf
and it's implication. While discussing the said aspect
of the matter, the trial Court has referred to the
aspect of burden of proof and the manner in which
the parties had proceeded. It was specifically held in
paragraph 50 of the judgment and order of the trial
Court that objection raised on behalf of the Petitioner
as to minority of defendant No.3 at the time of
execution of oral Wakf was not proved on the basis of
preponderance of probabilities. It is significant that
while supporting the contentions raised in the present
writ petition, the learned counsel appearing for the
petitioners repeatedly stressed upon the alleged
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admissions made on behalf of the contesting
respondent as regards the status of the defendant
No.3, being a minor at the relevant time.
10. It is worthwhile to see that while leading
evidence, the parties were themselves alive to the
aforesaid matter in controversy between them. The
learned counsel for the contesting respondent is
justified in relying upon the judgment of this Court in
the case of Sk. Ibrahim (supra), wherein this Court
has held that the when parties are fully aware of their
respective cases for leading necessary evidence, the
question of remanding the matter by the Appellate
Court would not arise.
11. In the present case, there were certain
specific issues framed by the trial Court. In that
context, the parties led oral and documentary
evidence. In the evidence itself, there is a reference
to the aspect of the alleged status of defendant No.3
being a minor at the relevant time. Cross-
examination was conducted in that regard and the
trial Court had not only discussed the matter on the
aforesaid point of controversy but, it had also
rendered findings as noted above.
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12. As to whether such findings rendered by
the trial Court are correct or not, would be a matter
to be determined by the Appellate Court on the basis
of the contentions that would be raised by the rival
parties and in the backdrop of the material available
on record.
13. This Court is of the opinion that no case
is made out for exercise of power under Order 41
Rule 25 of the CPC, because such power could be
exercised for framing of an issue which the trial Court
has omitted to frame for determining a question of
fact in the present case.
14. As noted above, the parties were fully
aware about their rival positions on the aforesaid
point in controversy. Evidence was led in that regard
and the trial Court discussed the same while
rendering findings against the petitioners. Therefore,
there was no occasion for the Appellate Court to have
exercised power under Order 41 Rule 25 of the CPC.
In view of the above, it is found that no case is made
out for interference in the impugned order passed by
the Appellate Court.
15. It is brought to the notice of this Court
that by orders passed on more than one occasion, the
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Appellate Court was directed to decide the appeal
expeditiously and within a particular time frame. In
that regard it is submitted that further extension may
be granted to enable the Appellate Court to hear the
rival parties and render judgment on the basis of the
material available on record.
16. In view of the above, the writ petition is
dismissed. The Appellate Court is directed to decide
the appeal expeditiously and in any case within a
period of four weeks from today.
17. Needless to say, when the contesting
respondent has taken the position that the rival
parties were alive to the controversy between the
parties on the aforesaid specific issue sought to be
highlighted on behalf of the petitioners, it will not lie
in the mouth of the contesting respondent to contend
before the Appellate Court that the petitioners would
not be entitled to address the Appellate Court on the
said issue, merely because specific issue in that regard
was not framed before the trial Court.
JUDGE
Digitally signed byRAVIKANT
CHANDRAKANT KOLHE
Signing Date:16.03.2022
18:58
KOLHE
