Pravinaba D/O Mobatsinh ... vs Prathvirajsinh Mobatsinh ...
2023 Latest Caselaw 3061 Guj

       C/SCA/5652/2022                                ORDER DATED: 20/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 5652 of 2022

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     PRAVINABA D/O MOBATSINH JASHWANTSINH VAGHELA AND W/O
                   DAIVATSINH BHIMSINH JADEJA
                             Versus
               PRATHVIRAJSINH MOBATSINH VAGHELA
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Appearance:
MR AMIT THAKKAR WITH MR VICKY B MEHTA(5422) for the Petitioner(s)
No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 2,3,5
NOTICE SERVED for the Respondent(s) No. 1,4
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     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 20/04/2023

                                   ORAL ORDER

1. This petition is filed under Article 227 of the

Constitution of India by the original plaintiff praying to quash and set aside the order dated 14.2.2022 passed

below Exh.60 in Regular Civil Suit No.56 of 2019 (Old

Special Civil Suit No.771 of 2010) by learned Principal

Civil Judge, Bavla, District Ahmedabad (Rural) and

further to reject the said application Exh.60.

2. The brief facts leading to filing of this petition

are such that the petitioner-plaintiff preferred Regular

Civil Suit No.56 of 2019 (Old Special Civil Suit No.771

C/SCA/5652/2022 ORDER DATED: 20/04/2023

of 2010) before the learned Principal Civil Judge, Bavla,

Ahmedabad (Rural) seeking to quash and set aside the

sale deed executed in favour of defendant nos.2 to 5 by

the defendant no.1 dated 12.7.2010. It is averred that

the land of Survey No.266/1 paiki, 266/2 paiki, 311/1

paiki and 168/1 paiki (new and old tenure land) of

village Dumali, Taluka Bavla, District Ahmedabad was

owned and possessed by father of the plaintiff i.e.

Mobatsinh Jashwantsinh Vaghela and by virtue of family

partition which took place on 27.12.1988 during his

lifetime, the suit land came into the ownership of the

plaintiff and mutation entry no.701 was also mutated

and confirmed on 30.1.1989. It is averred that the

defendant nos. 1 and 3 filed their reply to the suit and confirming the fact that there is no dispute with regard

the fact that the suit land was in the ownership and

possession of father of the plaintiff and that the lands of

Survey No.266/1 and 266/2 of village Dumali is running

in the name of Gumansinh Mobatsinh (deceased) as

tenant and mutation entry no.19 was also mutated. The

rejoinder and sur-rejoinder were also filed.

2.1 It is further averred that the petitioner-plaintiff

C/SCA/5652/2022 ORDER DATED: 20/04/2023

had also preferred application Exh.5 with the suit, which

was allowed vide order dated 8.3.2013, against which the

defendants preferred appeal, however, the same was

rejected.

2.2 It is further averred that after completing the

pleadings, the learned trial Court framed the issues at

Exh.46 and proceeded further for examination-in-chief of

the petitioner-plaintiff and the matter is now pending for

cross-examination of the petitioner-plaintiff.

2.3 It is averred that at this stage, application

was submitted by the defendants at Exh.60 to re-cast

four issues on 1.1.2022, the matter was adjourned to

27.1.2022 for hearing of applications at Exhs.59 and 60 and on 27.1.2022, the application at Exh.59 was allowed

for production of documents and exhibit numbers were

given to the documents. Due to Covid pandemic, the

learned advocate for the petitioner-plaintiff joined through

zoom meeting and requested for adjournment and the

proceedings were adjourned to 14.2.2022. However, on

14.2.2022, without permitting the learned advocate for

the petitioner-plaintiff to argue and produce written

objections to the application at Exh.60, the learned trial

C/SCA/5652/2022 ORDER DATED: 20/04/2023

Court allowed the application partly. Thus, the present

petition is filed against the said order.

3. Heard learned advocate Mr.Amit Thakkar with

learned advocate Mr.Vicky Mehta for the petitioner and

learned advocate Mr.S.P.Majmudar for the respondents.

3.1 Learned advocate Mr.Thakkar for the petitioner

submitted that the impugned order allowing the

application filed by the defendants at Exh.60 for

recasting the issues is totally misconceived. He has

further submitted that the present respondents who are

the original defendants in the suit has filed written

statement and thereafter affidavit-in-rejoinder and

affidavit in sur-rejoinder is also filed by the parties. He has, therefore submitted that it is well settled principle

that the Court has to frame the issues from the

pleadings of the parties. He has submitted that the

pleadings are completed much prior to the framing of the

issues at Exh.46 on 13.3.2020. He has submitted that

though the trial Court has rightly not considered the

suggested issue no.1 in the application for recasting of

issues but has erred in considering the issue nos.2,3 and

4 suggested in the application at Exh.60. He has

C/SCA/5652/2022 ORDER DATED: 20/04/2023

submitted that since the issue nos.2 and 3 are already

covered by the earlier issue no.2 framed by the Court,

there is no question to recast the issue by adding issue

no.2 as per Exh.60 application. He has further submitted

that the issue no.3 in Exh.60 application pertains to

ancestral land and pointed out that the issue no.1

framed earlier at Exh.46 is sufficient for the same and

there is no need to recasting the issue as suggested by

the respondents for the reason that neither he has made

any averment in the plaint about the ancestral property

nor there is any averment in the written statement of

the defendants which requires recasting of such issue

no.3. He has further submitted that issue no.4 which is

prayed for recast by the defendants should have been raised at the time of framing of issues at Exh.46 and

also that as it is regarding the payment of court fee, it

is required to be considered by the Court and therefore

that issue is not required to be recast. He has further

submitted that considering the provisions of Order XIV

Rule 5, the Court has wrongly exercised discretion, that

too, at a belated stage when the evidence is already

commenced. He has further submitted that issue no.3,

which is regarding ancestral property, is otherwise

C/SCA/5652/2022 ORDER DATED: 20/04/2023

misconceived, more particularly, when the defendant has

admitted that the property is of the father of the

petitioner, then there is no question to frame any issue

regarding the same as it is an admitted fact. Learned

advocate Mr.Thakkar submitted that the impugned order

is passed during the period of Covid-19 pandemic and at

that point of time, the proceedings were conducted online

by the concerned Court and the petitioner was not

effectively heard on the said application at Exh.60.

Therefore, he has prayed that this is a fit case to

exercise supervisory jurisdiction under Article 227 of the

Constitution of India by interfering with the impugned

order passed by the Court below.

3.2 Per Contra, learned advocate Mr.Majmudar for the respondents has strongly objected to the present

petition and submitted that the present petition deserves

to be dismissed by drawing my attention to the

averments made in the plaint by the plaintiff and

submitting that when the plaintiff herself has averred

that the property is originally belonged to the father of

the plaintiff-Mobatsinh Jashwantsinh Vaghela, then it can

be said that it is the ancestral property. He has further

C/SCA/5652/2022 ORDER DATED: 20/04/2023

submitted by referring to paragraph 10 of his written

statement that he has not as such admitted that the

property is of the father of the plaintiff but he has

stated that there is no dispute about the same but still

the burden lies on the plaintiff to prove the rights and

source of the property in question. He has further

submitted that the issue no.2 pertains to the agreement

to sale and the possession agreement which issue is not

earlier dealt with by the Court while framing issues at

Exh.46 and the Court has only framed the issue

pertaining to registered sale deed and power of attorney

and therefore, this issue is also required. As regards

issue no.4, he has submitted that the Court can certainly

frame this issue whenever it is brought to the notice of the Court. He has drawn my attention to the provisions

of Order XIV Rule 5 of CPC and submitted that the

issue can be recasted at any stage and thereafter the

say of the petitioner that the application is filed at

belated stage is not acceptable.

3.3 In support of his submissions, learned advocate

Mr.Majmudar relied on the citations in the case of Aia

Engineering Private Limited V/s Bharat Dand reported

C/SCA/5652/2022 ORDER DATED: 20/04/2023

in 2009(0) AIJEL-HC 222192 and in the case of

Shardaben D/o Davalbhai Maganbhai Patel V/s Narwarbhai Davalbhai Patel, reported in 2022(0) AIJEL- HC 243675. Lastly, learned advocate Mr.Majmudar

submitted that this Court should not exercise jurisdiction

under Article 227 of the Constitution of India as no case

is made out to interfere with the discretionary order

passed by the learned trial Court in view of the

judgment in the case of Garment Craft V/s Prakash

Chand Goel, reported in (2022)4 SCC 181 and prayed to dismiss this petition.

4. I have considered the submissions made at the

bar by the parties, I have also considered the pleadings

of the parties i.e. plaint, written statement, affidavit-in- rejoinder and affidavit in sur-rejoinder filed by the

parties before the learned trial Court, the proceedings

before the trial Court i.e. copy of the rojkam produced

on record.

5. Considering the submission regarding non-

hearing of the present petitioner, it was pointed out

during the course of argument from the proceedings

recorded by the learned trial Court in the rojkam dated

C/SCA/5652/2022 ORDER DATED: 20/04/2023

14.2.2022 which shows that the learned advocate for the

petitioner and defendants were present. But prior to that

proceeding, it is not recorded that the hearing of

application Exh.60 is taken up and on 14.2.2022, it

transpires that the order is passed on Exh.60 application.

Therefore, it seems that there is some substance in the

submission made at the bar by learned advocate

Mr.Thakkar for the petitioner. However, looking to the

proceedings of the prior dates, it transpires that learned

advocate for the petitioner was present on almost all the

dates where the proceedings were recorded by the Court

but that controversy is not entered into as it is still not

clear that whether the petitioner is actually heard or not

regarding Exh.60 application. From the bare perusal of the material available on the record, it transpires that

the learned trial Court has committed error in granting

the application at Exh.60 with regard to recasting of the

issues no.2 and 3 as suggested by the defendants and

the learned trial Court has rightly not considered the

recasting of issue no.1.

6. As regards issue no.2, it pertains to the fact of

any sale transaction or agreement to sale and possession

C/SCA/5652/2022 ORDER DATED: 20/04/2023

agreement, and this issue is already framed at Exh.46

by way of issue nos.2 and 3, which pertain to registered

sale deed which is executed on the basis of the power of

attorney, there is no significance for considering

agreement to sale or possession agreement and

controversy pertaining to such sale transaction can be

decided by considering the registered sale deed and

therefore it is clear that the Court has committed error

in permitting recasting of issue no.2 as suggested in

application at Exh.60.

7. As regards issue no.3 in exh.60 application

which pertains to whether the plaintiff proves that the

land in question of ancestral property or not, considering

the pleading of the plaintiff, the plaintiff has clearly stated that it is received from her father and that fact

is clearly not disputed in the written statement filed by

the present respondent who is defendant. Moreover,

considering the affidavit-in-rejoinder and sur-rejoinder

also, it is clearly established that the petitioner has

claimed that the property in question of survey no.266/1

and 266/2 is ancestral property and when there is no

dispute between the parties about the said property

C/SCA/5652/2022 ORDER DATED: 20/04/2023

that it is originally of the ownership of the father of the

plaintiff, then there is reason to frame the issue. It is

well settled position of law that as per the procedure of

CPC, after filing of plaint and after filing of written

statement, Court frames the issues to decide the

controversy between the parties and for that framing of

the issues, the Court has to consider the pleadings of

the party and from that, the Court has to consider what

is the issue for which the parties are required to lead

evidence and prove the issue.

8. As regards issue no.4 which pertains to Court

fees, I am of the opinion that there is no error

committed by the learned trial Court in framing such

issue.

9. In view of the above discussion, it clearly

establishes that the Court has committed gross error

which will prejudice the rights of the present petitioner.

There cannot be any dispute with regard to the ratio

laid down in the judgment relied on by learned advocate

for the respondents, but, if we consider the judgment in

totality of the facts and circumstances of the present

C/SCA/5652/2022 ORDER DATED: 20/04/2023

case, when there is no case is made out to recast issue

nos.2 and 3 from the pleadings of the parties, Court has

wrongly exercised the jurisdiction by allowing the

application Exh.60 to the extent of recasting of issue

no.2 and 3.

10. In view of the above, this petition is partly

allowed. The impugned order dated 14.2.2022 passed

below Exh.60 in Regular Civil Suit No.56 of 2019 (Old

Special Civil Suit No.771 of 2010) by learned Principal

Civil Judge, Bavla, District Ahmedabad (Rural) to the

extent of recasting of issue nos.2 and 3 mentioned in the

application Exh.60, which read as "(2) Whether the

plaintiff proves that the agreement to sell and possession

agreement dated 4.7.2010 are false or created? And (3) Whether the plaintiff proves that out of the suit land,

land of Survey No.266/1 and 266/2 are ancestral land?"

is quashed and set aside. The order regarding recasting

of issue no.4 which reads as "Whether the defendants

prove that proper court fees stamp is not affixed in the

plaint?" is upheld and the recast of issue no.4 is

permitted. No order as to costs.

(SANDEEP N. BHATT,J) SRILATHA