Madras High Court
S.Ravi vs P.Navaneetharaj .. 1St on 8 October, 2021
O.S.A.No.181 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.10.2021
CORAM
THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
O.S.A.No.181 of 2018
1.S.Ravi
2.Tmt.S.Gomathi
3.Tmt.Anjanapriya
4.Minor Gomatheeswaran
5.Tmt.Neelavathy .. Appellants/Defendants 1 to 5
Vs.
1.P.Navaneetharaj .. 1st Respondent/Plaintiff
2.The Assistant Commissioner,
(ULT) Mylapore, Chennai - 4
3.The Collector,
Chennai District,
Chennai - 600 001.
4.The District Revenue Officer,
Chennai District,
Chennai - 600 001.
5.The Tahsildar,
Mylapore - Triplicane Taluk,
Mylapore, Chennai - 600 004.
6.The Tamil Nadu Wakf Board
Rep. by its Chief Executive Officer,
No.1, Jaffer Syrang Street,
Vallal Seethakadi Nagar,
Mannady, Chennai - 600 001. .. Respondent 2 to 6/Defendants
6 to 10
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Prayer : Original Side Appeal filed under Order XXXVI Rule 9 of O.S.
Rules r/w Clause 15 of Letters Patent against the Judgment and Decree
dated 09.10.2017 in C.S. No.694 of 2012.
***
For Appellant : Mr.T.M.Hariharan
M/s.Ravichandran Sundaram
For R2 to R5 : Mr.Edwin Prabhakar
State Govt. Counsel
For R6 : Mr.Avinash Wadhwani
for Mr.V.Raghavachari
For R1 : No Appearance
JUDGEMENT
PUSHPA SATHYANARAYANA, J.
The above original side appeal is preferred by defendants 1 to 5,
who were also the cross-objectors in C.S. No.694 of 2012. The
plaintiff/the first respondent herein is the son of one Ponnappa Pillai @
Perumal and Govindammal. The first and second defendants are son
and daughter of the plaintiff's brother one P.Subramani. The 3rd and
4th defendants are wife and son of one S.Prabhakaran, who is the
brother of first defendant. The fifth defendant is the mother of
defendants 1 and 2 and the said S.Prabhakaran and wife of
P.Subramani.
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2. One Kalappa Naidu in the year 1915, had conveyed an extent
of 116.13 grounds in Survey Nos.2252 and 2253 and Re-survey
Nos.2024 and 2025 in Mylapore village in favour of plaintiff's father
Ponnappa Pillai. In 1953, the mother of the plaintiff and wife of
Ponnappa Pillai, namely Govindammal, died. Thereafter, the said
Ponnappa Pillai @ Perumal had settled the entire properties in favour of
his eldest son P.Subramani by a registered Settlement Deed on
29.07.1955. In the year 1957, the said Ponnappa Pillai died and the
defendants who are the legal heirs of the said P.Subramani are in
possession of the property. While so, the suit is filed by the plaintiff,
who is the second son of Ponnappa Pillai for declaration that the decree
in C.S. No.185 of 2008, as null and void and for a preliminary decree
for partition and separate possession of the suit property. As the
defendants 1 to 5 are already in possession in their own right, they had
filed a written statement along with a counter claim.
3. As per the counter claim, the defendants 1 to 5 had prayed for
a declaration that they are the absolute owners of the property, which
is a vacant land measuring about 90 grounds and 75 sq.ft. in R.S.
No.2024 and paid the relevant court fees also. It is also admitted that,
out of the original 116.13 grounds, a portion of the same had been
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occupied by a mosque and also used as a burial ground for Muslims.
Therefore, the Wakf Board and the Revenue Authorities were impleaded
by the court suo motu.
4. The plaintiff, who is the first respondent herein, alleged to have
executed a settlement deed on 02.02.2007 in favour of the first
defendant's father Subramani. Within a month, on 06.03.2007, the said
Settlement Deed was cancelled unilaterally by him, for the reasons best
known to him. The said property was settled by the original owner
Ponnappa Pillai in favour of P.Subramani. The defendants 1 to 5, who
are the legal heirs of P.Subramani, had filed C.S. No.185/2008 for a
partition, which ended up in a compromise. A final decree was passed in
terms of the compromise dated 11.03.2010, which is also exhibited as
Ex.D8. There was yet another suit filed by one Dilshad. Both the
plaintiff and the defendants in the present suit, were arrayed as parties
in the above said suit. The appellants herein had filed an application
under Order VII Rule 11 CPC for rejection of the said plaint, which was
rejected by this court and an appeal filed by the plaintiffs therein in
O.S.A. No.121/2014 was dismissed for non-prosecution. Yet another
appeal filed by the appellants herein in O.S.A. No.20/2016 was also
closed on 30.06.2016.
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5. In the instant case, the trial court dismissed both the suit and
the counter claim with costs of litigation payable to the defendants 6 to
10. Hence, the appeal.
6. A perusal of the records shows that no issue has been framed
in the suit. The learned single Judge also has not mentioned what are
the issues framed for consideration. Though the defendants 6 to 10
were impleaded suo motu, they also remained ex-parte and they have
not filed any written statement. The defendants 1 to 5 had made a
counter claim in their written statement by paying court fees, but the
learned single Judge had not discussed the same. The object of framing
an issue in a suit is only to ascertain the real dispute between the
parties by narrowing down the area of conflict and determine whether
they differ. It is true that no issues have been framed by the trial court.
Even presuming that issues were not framed, the plaintiff has not
entered into the witness box and let in any evidence or filed any
document. Whereas, the appellants herein/defendants 1 to 5 have filed
their written statement and marked as many as thirteen documents as
Exs.D1 to D13, besides examining DW1 on their side.
7. The learned single Judge had not even adverted to any one of
the documents filed by the defendants 1 to 5 in support of their defence
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or counter claim. The non-framing of an issue has become fatal in this
case. Even the pleadings were not discussed by the learned single
Judge. Without even framing an issue and adverting to the documents
available on record, the suit has been disposed of, holding that it is a
vexatious litigation and coercion to defraud government. But the claim
of the plaintiff for partition was categorically denied by the defendants 1
to 5 and they have filed documents in support of their defence and the
counter claim.
8. The trial court, has proceeded to dispose of the suit, even
without framing an issue to find out the areas of dispute. In fact, the
day when the issues are framed, is deemed to be the first hearing of
the suit. As the issues would determine, whether each party admits or
denies the allegation made mutually. Being a suit for partition, whether
they are plaintiff or the defendants, the status of the parties are the
same. Only when the defendant has no defence and submit to the
decree, the issues need not be framed. If the averments made in the
plaint are admitted in the written statement also, an issue need not be
framed. However, without framing an issue on the disputed question of
facts and also the counter claim made by the defendants, the learned
single Judge, had simply dismissed the suit, as a vexatious litigation,
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without even adverting to the documents and came to the conclusion
that the parties are in collusion.
9. In this regard, reliance can be placed on the decision of the
Hon'ble Apex Court in Pratima Sinha and Others vs. Shashi Kumar
Narain Sinha and Others reported in (2004) 13 SCC 599, wherein
the Hon'ble Apex Court held that the trial Court should have framed
issues arising out of the pleadings in accordance with Procedure under
Order XIV Rule 1 of CPC and thereafter, it should have decided such
issue. Trial court for having not followed this procedure, the matter was
remanded to the trial for deciding the suit afresh. Paragraphs 9 and 10
of the said Judgment, read thus :
"9. However, we do not intend to decide the matter on
merits at all. We are of the view that the Subordinate Judge
should have framed the issues arising out of the pleadings in
accordance with the procedure of Order 14 Rule 1 of the Civil
Procedure Code. After framing all the issues, if the trial Judge
is of the view that any of the issues raised would dispose of the
suit either wholly or in part then the Judge can on the basis of
the provisions of Order 14 Rule 2 decide such issue. The
Subordinate Judge not having followed this procedure, we do
not think that it would be appropriate to uphold the decision of
the Subordinate Judge.
10. Therefore we dispose of this appeal by setting aside
the decision of the High Court on the ground that the revisional
application was incompetent. At the same time we set aside
the order of the Subordinate Judge and remand the matter
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back to the trial court for redeciding the suit strictly in
compliance with the observations in this judgment. No costs.
10. In Kalyan Singh Chauhan v. C.P. Joshi reported in (2011)
11 SCC 786, reiterating the importance and object of framing of issues,
the Hon'ble Apex Court, observed as follows:
21. This Court in Bachhaj Nahar v. Nilima Mandal,
(2008) 17 SCC 491, held as under: (SCC pp. 496 & 500,
paras 12-13 & 23)
“12. The object and purpose of pleadings
and issues is to ensure that the litigants come to
trial with all issues clearly defined and to
prevent cases being expanded or grounds being
shifted during trial. Its object is also to ensure
that each side is fully alive to the questions that
are likely to be raised or considered so that they
may have an opportunity of placing the relevant
evidence appropriate to the issues before the
court for its consideration.
13. The object of issues is to identify from
the pleadings the questions or points required to
be decided by the courts so as to enable parties
to let in evidence thereon. When the facts
necessary to make out a particular claim, or to
seek a particular relief, are not found in the
plaint, the court cannot focus the attention of
the parties, or its own attention on that claim or
relief, by framing an appropriate issue…. Thus it
is said that no amount of evidence, on a plea
that is not put forward in the pleadings, can be
looked into to grant any relief.
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***
23. The jurisdiction to grant relief in a
civil suit necessarily depends on the pleadings,
prayer, court fee paid, evidence let in, etc.”
22. In J.K. Iron & Steel Co. Ltd. v. Mazdoor Union
[AIR 1956 SC 231] , this Court observed: (AIR p. 235, para
24)
“24. … It is not open to the tribunals to fly
off at a tangent and, disregarding the pleadings,
to reach any conclusions that they think are just
and proper.”
23. Order 14 Rule 1 CPC reads:
“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.”
Following the above ratio, we are of the view that non-framing of issues
is fatal to the instant case.
11. The Hon'ble Supreme Court in Shivaji Balaram Haibatti v.
Avinash Maruthi Pawar, (2018) 11 SCC 652, has held that the
parties to the suit cannot travel beyond the pleadings so also the court
cannot record any finding on the issues which are not part of pleadings
and it was made clear that the court has to record the findings only on
the issues which are part of the pleadings on which parties are
contesting the case. Ultimately, the Hon'ble Supreme Court observed
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that any finding recorded on an issue dehors the pleadings is without
jurisdiction. The relevant portion of the said judgment reads as follows:
"26. It is these issues, which were gone into by the two
courts and were concurrently decided by them against the
respondent. These issues, in our opinion, should have been
examined by the High Court with a view to find out as to whether
these findings contain any legal error so as to call for any
interference in second appeal. The High Court, however, did not
undertake this exercise and rather affirmed these findings when
it did not consider it proper to frame any substantial question of
law. It is a settled principle of law that the parties to the suit
cannot travel beyond the pleadings so also the court cannot
record any finding on the issues which are not part of pleadings.
In other words, the court has to record the findings only on the
issues which are part of the pleadings on which parties are
contesting the case. Any finding recorded on an issue dehors the
pleadings is without jurisdiction. Such is the case here.
.....
28. First, the respondent did not adduce any evidence to
prove that he was in possession of the suit shop as tenant of the
appellant's predecessor-in-title. In order to prove the tenancy
between the respondent and the appellant's predecessor-in-title
(Vithal Dhopeshwarkar), it was necessary for the respondent to
have filed rent receipts/lease deed, etc. and also to have
examined his landlord who, according to him, had inducted him
as tenant in the suit shop. It was not done.
.....
30. In the light of the aforementioned reasons, we are of
the considered opinion, that the High Court was not right in
holding that the respondent was in occupation of the suit shop as
tenant and that the remedy of the appellant was to file a civil suit
to claim eviction under the rent laws. This finding, in our view, is
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contrary to the pleadings and evidence. It is also otherwise not
legally sustainable for want of any evidence adduced by the
respondent in support thereof."
The plaintiff, having not submitted himself for examination nor filed any
document, normally, adverse inference would be drawn to the
advantage of the defendants. Therefore, the judgment and decree of
the learned Single Judge rendered without discussing any documents or
evidence have to be set aside and sent back for fresh trial.
12. In the light of the above, the appeal is allowed, the judgment
and decree dated 09.10.2017 made in C.S. No.694 of 2012 are set
aside and the matter is remitted back to the learned single Judge. The
learned single Judge is directed to frame appropriate issues and conduct
a de novo trial and dispose of the suit, in accordance with law. The
parties shall bear their own costs. Considering the fact that the suit is of
the year 2012, the trial may be completed at the earliest and the suit
may be disposed of within a period of six months.
(P.S.N., J.) (K.R., J.)
08.10.2021
Index : Yes / No
Internet: Yes
Asr
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PUSHPA SATHYANARAYANA, J.
AND
KRISHNAN RAMASAMY, J.
Asr
Pre-Delivery Judgment in
O.S.A. No.181 of 2018
08.10.2021
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