Karnataka High Court

Smt. Rajul W/O Jayatilal Telisara vs Smt. Shobha W/O Manjunath ... on 1 December, 2021

Bench: Jyoti Mulimani

                             1




     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 1ST DAY OF DECEMBER, 2021

                          BEFORE

          THE HON'BLE MS. JUSTICE JYOTI MULIMANI

                M.S.A. NO.100004 OF 2021

BETWEEN

1.    SMT.RAJUL
      W/O JAYATILAL TELISARA,
      AGE ABOUT 55 YEARS,
      OCC:HOUSEHOLD WORK,
      R/O SHIVAGANGA LAYOUT, KESHWAPUR,
      HUBBALLI.

2.    SMT.NISHA
      W/O ASHISH MEHTA,
      AGE ABOUT 35 YEARS,
      OCC:HOUSEHOLD WORK,
      R/O SHIVAGANGA LAYOUT, KESHWAPUR,
      HUBBALLI.
      REPRESENTED BY GPA HOLDER APPELLANT NO.1
      SMT. RAJUL TELISARA.

3.    SMT.NEHA
      W/O PRATHAM MEHTA,
      AGE ABOUT 32 YEARS,
      OCC:HOUSEHOLD WORK,
      R/O SHIVAGANGA LAYOUT, KESHWAPUR,
      HUBBALLI.
      REPRESENTED BY GPA HOLDER APPELLANT NO.1
      SMT. RAJUL TELISARA.

4.    MEHUL
      A/F. JAYANTILAL TELISARA
                          2




     AGE: ABOUT 25 YEARS,
     OCC: BUSINESS,
     R/O SHIVAGANGA LAYOUT, KESHWAPUR,
     HUBBALLI.

5.   SMT.PATASHIBAI
     W/O VIMALCHAND TELISARA,
     AGE:ABOUT 77 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O SHIVAGANGA LAYOUT, KESHWAPUR,
     HUBBALLI.

6.   DILIP
     S/O VIMALCHAND TELISARA,
     AGE:ABOUT 49 YEARS,
     OCC:BUSINESS,
     R/O SHIVAGANGA LAYOUT, KESHWAPUR,
     HUBBALLI.

7.   SMT.NEETHA
     W/O MANOJ TELISARA,
     AGE:ABOUT 43 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O SHIVAGANGA LAYOUT, KESHWAPUR,
     HUBBALLI.

8.   MS.NIDHI
     D/O MANOJ TELISARA,
     AGE:ABOUT 29 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O SHIVAGANGA LAYOUT, KESHWAPUR,
     HUBBALLI.

9.   RISHAB
     S/O MANOJ TELISARA,
     AGE:ABOUT 24 YEARS,
     OCC:BUSINESS,
     R/O SHIVAGANGA LAYOUT, KESHWAPUR,
     HUBBALLI.
                             3




10.   SMT.SHOBHA
      W/O DILIP TELISARA,
      AGE:ABOUT 47 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O SHIVAGANGA LAYOUT, KESHWAPUR,
      HUBBALLI.                            ...APPELLANTS

      (BY SRI. MALLIKARJUNASWAMY B. HIREMATH, ADVOCATE)

AND

1.    SMT.SHOBHA
      W/O MANJUNATH HURKADLI,
      AGE:ABOUT 58 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O GURUKRUPA, BEHIND DR.GALAGALI'S CLINIC,
      I.B.ROAD, DESHPANDE NAGAR,
      HUBBALLI - 580 009.

2.    SANDEEP
      S/O MANJUNATH HURKADLI,
      AGE: ABOUT 31 YEARS,
      OCC:PRIVATE SERVICE,
      R/O GURUKRUPA, BEHIND DR.GALAGALI CLINIC,
      I.B.ROAD, DESHPANDE NAGAR,
      HUBBALLI - 580 009.

3.    SMT.RESHMA
      D/O MANJUNATH HURKADLI,
      AFTER MARRIAGE
      W/O SANGMESH BENNI,
      AGE:ABOUT 30 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O GURUGRUPA, BEHIND DR.GALGALI CLINIC,
      I.B.ROAD, DESHPANDE NAGAR,
      HUBBALLI - 580 009.                ...RESPONDENTS

(R1 TO R3 ARE SERVED)
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      THIS MSA IS FILED UNDER ORDER 43 RULE 23(1)(u) OF

CODE OF CIVIL PROCEDURE, 1908.


      THIS APPEAL POSTED FOR FINAL HEARING, THIS DAY, THE

COURT MADE THE FOLLOWING:

                            JUDGMENT

Sri.Mallikarjunswamy B.Hiremath, learned counsel for

appellants has appeared in person.

2. For the sake of convenience, parties are referred to

by their rank as they stand in the original suit.

3. The facts are stated as under:-

Plaintiffs filed the suit against the defendants for the relief

of declaration to declare that the sale deed dated 04.04.2007 is

not binding on the shares of the plaintiffs and the same is sham,

bogus and void document. The prayer of mandatory injunction

was sought to direct the Senior Sub- Registrar Hubballi to cancel

the names and signatures of plaintiffs in the sale deed dated

05.04.2007 registered at HBL-1-00158/2008 and for permanent

injunction to restrain defendants 1 to 6 from interfering into the

peaceful possession and enjoyment of undivided shares of

plaintiffs over the suit schedule property comprised in CTS NO

165/A coming under the CTS Ward No III , I.B. Road, Deshpande

Nagar, Hubli.

It is stated that the father-in-law of plaintiff-1 and the

grandfather of plaintiffs -2 and 3 by name Gurusangappa

Gurappa Hurkadli was the original owner of the suit schedule

property. The property was purchased from one Vasudev Rao

Raghavendra Rao Byahatti for Rs.25,000.00. After the death of

grandfather, his children continued to be in joint possession of

the suit property.

It is said that the husband of plaintiff-1 died on 07.01.2004

leaving behind plaintiffs as his only heirs. The defendant-1 being

the real estate developer approached the brother-in-law of

plaintiff-1 to purchase the suit property and as per negotiations,

plaintiffs agreed to sell their undivided share for Rs.33,00,000

(Rupees Thirty Three Lakhs only). The defendant-1 agreed to pay

the sale consideration and he managed to get the signatures of

plaintiffs over the sale agreement and blank bond papers.

It is stated that the plaintiffs have not taken the copies of

the said agreement and blank bond papers though the plaintiffs

are in actual possession of the suit property along with the other

members of the Hurakadli family.

The defendant-1 got plaintiff-1 to obtain permission from

the Court to execute the sale deed. The plaintiff-1 was directed

by the defendant-3 to approach the Civil Court and accordingly,

the plaintiff-1 filed G & W case. The plaintiff-1 is housewife and

widow having no sufficient knowledge, the defendants induced to

execute a sale deed. The plaintiffs have not seen the contents of

the sale deed, as the defendants did not allow for the same which

was executed on 04.04.2007.

The defendants promised the plaintiffs to pay the remaining

balance amount after the execution of sale deed and at the time

of handing over the actual possession of the suit property. It is

contended that the sale deed executed by the plaintiffs is the

outcome of fraud, coercion and threats and the defendants have

not paid sale consideration amount and therefore, the said sale

deed is void ab initio. Accordingly, the suit came to be filed.

After the receipt of suit summons, the defendants appeared

through their counsel and filed their written statement. After full

fledged trial, the suit came to be dismissed. The plaintiffs

preferred regular appeal before the First Appellate Court. The

Appellate Court framed additional issues and set-aside the

judgment and decree of the trial Court and remanded the matter

to the trial Court. Hence, this Miscellaneous Second Appeal is

filed.

4. Sri.Mallikarjunswamy Hiremath, learned counsel for

appellants submits that the order of remand is illegal, arbitrary

and not supported by valid reasons.

Next, he submitted that the First Appellate Court erred in

remanding the case on the ground that the trial Court has not

framed issue with regard to non-joinder of necessary parties.

A further submission was made that the order of remand is

much against the mandate of Section 99 of Code of Civil

Procedure which puts a rider to First Appellate Court from

exercising the power of remand on the ground of non-joinder

of necessary parties not affecting the merits of the case.

It is submitted that the contention in written statement

with regard to non-joinder of necessary parties cannot be a

ground for the plaintiffs to seek a remand.

Learned counsel vehemently submitted that remand is

permissible only under circumstances mentioned under Order 41

Rule 23 and 23 (a) and in the instant case, the First Appellate

Court has not assigned any reason for remanding the case to trial

Court.

It is also submitted that this Court in

SHANTHAVEERAPPA VS K.N. JANARDHANACHARI reported

in ILR 2007 KARNATAKA 1127 emphasized on the point that

the power of remand should be exercised sparingly.

Lastly, he contended that the judgment and decree of the

First Appellate Court lacks judicial reasoning hence, the same is

liable to be set- aside and the appeal may be allowed.

5. Heard the contentions urged on behalf appellants

and perused the records with care.

The case really falls within a small compass. The suit was

simple, but as it went on appeal, it has widened out. The

plaintiffs brought an action for declaration and other

consequential reliefs.

The defendants, however, raised many pleas.

As could be seen from the pleadings, the plaintiffs

contended that the sale deed dated 04.04.2007 is sham, bogus

and not binding on their shares. It is relevant to note that the

first defendant in paragraph 13 of the written statement has

stated that the cause of action never arose. The cause of action

is concocted. The suit is bad for non-joinder of necessary parties

and the Court fee paid is not proper. Taking note of the

statement with regard to non-joinder of necessary parties, the

First Appellate Court concluded that framing of additional issue is

necessary and ultimately framed additional issue as under:-

"Whether defendants prove that the suit is bad for non - joinder of necessary parties"?

The case is remitted to the trial Court with a direction to

frame additional issue and implead necessary parties and give an

opportunity to both the parties to lead further oral and

documentary evidence and dispose of the matter in accordance

with law. It is this remand order which is under challenge in this

appeal.

While addressing arguments, counsel for appellants

strenuously urged that the First Appellate Court has erred in

framing additional issue and has further erred in remanding the

matter.

I have heard the contention. The controversy is with

regard to framing of issues. It is necessary to understand the

importance and scope of Order XIV of the Code of Civil Procedure

1908.

The issues are the backbone of a suit and framing of issues

is an important stage at which the scope of the trial is

determined. The stage of framing the issues is an important one

inasmuch as on that day the scope of the trial is determined by

laying the path on which the trial shall proceed excluding

diversions and departures therefrom. The date fixed for

settlement of issues is, therefore, a date fixed for hearing. The

real dispute between the parties is determined, the area of

conflict is narrowed and the concave mirror held by the Court

reflecting the pleadings of the party's pinpoints into issues the

disputes on which the two sides differ. It is needless to say that

the correct decision of civil lis largely depends on correct framing

of issues, correctly determining the real points in controversy

which need to be decided.

The duty of framing issues rests on the Court. When

framing issues, it is important to bear in mind that it is an

absolute necessity that the determinations in a cause should be

founded upon a case to be found in pleadings or involved in or

consisted with the case thereby made.

In this context, reference is invited to Order XIV of the

Code of Civil Procedure, 1908. Order XIV sub-Rule (1) to (6)

reads as under:

"1. 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.

(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, 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."

A bare reading of Order XIV of the Code of Civil Procedure

1908 makes it very clear that it is the duty of the trial Court to

ascertain at the first hearing of the suit the material propositions

on which the parties are at variance and thereafter, to frame and

record the issues on which the decision of the case depends.

Further, the scheme of Order XIV of the Code of Civil

Procedure, 1908, dealing with Settlement of Issues shows that an

issue arises when a material proposition of fact or law is affirmed

by one party and denied by the other and 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 and each material proposition

affirmed by one party and denied by other should form the

subject of a distinct issue.

Let me consider, whether the trial Court has ascertained

the material propositions on which plaintiffs and defendants were

at variance. In the instant case, both plaintiffs and defendants

have put forth their material propositions and they are as under.

Material proposition put forth by the plaintiff; the plaintiffs

contended that the sale deed dated 04.04.2007 is sham, bogus

and not binding on their shares.

Material proposition put forth by the defendants; the

plaintiffs and others members of Hurkadali family have executed

sale deed dated 05.04.2007 for sale consideration of

Rs.33,84,000/- (Rupees Thirty Three Lakhs Eighty Four

Thousand only) in favor of defendants-1 to 6. Incidentally, they

also pleaded that there is no cause of action and the suit is bad

for non-joinder of necessary parties.

With these rival material propositions, it is necessary to

ascertain whether the trial Court has framed proper and

necessary issues in the background of the material propositions

put forth by the parties. It is relevant to note that where a

material fact stated in the plaint is denied or is not admitted in

the written statement, the Court must frame an issue/s on the

fact.

As could be seen from the judgment and decree, the trial

Court has framed six issues. Both the plaintiffs and the

defendants went to trial fully knowing the rival case and led

evidence. The trial Court in extenso referred to the material on

record and dismissed the suit. The plaintiffs preferred appeal

before the First Appellate Court. On appeal, the First Appellate

Court framed point for considerations.

Let me consider the third point for consideration with

regard to framing of additional issue is just and proper; and

whether framing of additional issue with regard to non-joinder of

necessary party is warranted in the present case.

As already noted, the material propositions put forth by

plaintiffs and defendants were in detail considered by the trial

Court. It is needless to say that the omission to frame a proper

issue/s may sometimes cause prejudice to parties resulting in

failure to lead evidence on the point. The law is well settled that

mere omission to frame an issue is not fatal to the trial of a suit,

unless the omission has affected the disposal of the case on

merits.

In the instant, case neither of parties pleaded that

non-framing of issue with regard to non-joinder of necessary

party has prejudiced their rights resulting in failure to lead

evidence on the point. The non-framing of issue has not caused

prejudice either to the plaintiffs or to the defendants. I am

unable to accept the reasons accorded by the First Appellate

Court in remanding the matter.

The law is well settled by the Apex Court in NEDUNURI

KAMESWARAMMA VS SAMPATI SUBBA RAO reported in AIR

1963 SC 884 wherein their Lordships held at para-6 as under.

The relevant portion of para-6 reads as under:-

"(6)................ since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings.

We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion".

It is perhaps well to observe that both the plaintiffs and

defendants went to trial fully knowing the rival case and led

evidence. The plaintiffs are not prejudiced for non-framing of an

issue regarding question of non-joinder of parties.

In the present case, both plaintiffs and defendants did not

claim that they had any further evidence to offer. I am,

therefore, of the opinion that the reasons assigned for the

remand is not acceptable.

I can say only this much that where the parties went to

trial fully knowing the rival case and led all the evidence not only

in support of their contentions but in refutation of those of the

other side, it cannot be said that the absence of an issue was