Purohit Bhanuprasad ... vs Punjabhai Amichandbhai Patel
2023 Latest Caselaw 7978 Guj

                                                                                         NEUTRAL CITATION




      C/SCA/15888/2019                                     ORDER DATED: 01/11/2023

                                                                                          undefined




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/SPECIAL CIVIL APPLICATION NO. 15888 of 2019
================================================================
                 PUROHIT BHANUPRASAD PARSHOTTAMDAS
                               Versus
                    PUNJABHAI AMICHANDBHAI PATEL
================================================================
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
================================================================
 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;

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

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

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

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.

                                                                                      NEUTRAL CITATION




     C/SCA/15888/2019                                  ORDER DATED: 01/11/2023

                                                                                      undefined

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.

                                                                                     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

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

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

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

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

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

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