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)
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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
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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
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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
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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
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(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
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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
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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
