[Cites 3, Cited by 0]
Orissa High Court
Kishore Kedia & Anr vs Harsh Vardhan Tibrewal & ..... Opposite ... on 7 March, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.276 of 2026
Kishore Kedia & Anr. ..... Petitioners
Represented by Sr.Adv. -
Sourav Suman Bhuyan
-versus-
Harsh Vardhan Tibrewal & ..... Opposite Parties
Anr.
Represented by Adv. -
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
07.03.2026
Order No.
01. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard Mr. Bhuyan, learned Senior Counsel for the Petitioners.
Perused the CMP application as well as the prayer made therein.
3. By filing the present CMP application under Article 227 of the
Constitution of India, the plaintiff in C.S. No.8 of 2012 pending in
the Court of learned Civil Judge, Jr. Division, Jharsuguda has
approached this Court challenging order dated 15.01.2026 at
Annexure-8 passed by the trial court thereby rejecting the prayer of
the Petitioners under Order 14 Rule 5 to frame and additional issue
with regard to the adoption of the Defendant No.1.
4. Learned Senior Counsel for the Petitioners at the outset
contended that initially the Petitioners-plaintiff filed a suit for
permanent injunction. The defendants after their appearance filed a
WS. In the WS the Defendant No.1 took a specific plea that he is the
adopted son of late Smt. Pana Devi, widow of late Mulchand
Tibrewal. On the basis of stand taken in the WS by the Defendant
No.1, the plaintiff filed a petition under Order 14 Rule 5 at
Annexure-3 requesting the learned trial court to frame an additional
issue with regard to adoption of the Defendant No.1 by the
abovenoted person. Such application having been rejected initially
vide order dated 12.12.2025, the Petitioner has approached this Court
by filing the present CMP application.
5. In course of hearing, learned Senior Counsel for the Petitioner
contended that since the Defendant No.1 has taken a specific stand
that he is the adopted son of late Smt. Pana Devi, which came into
knowledge of the Petitioner only after filing of the WS, the Petitioner
filed an application before the learned trial court to frame a specific
issue with regard to the adoption of the Defendant No.1 by late Smt.
Pana Devi. He further contended that such an issue stemed from the
ground taken in the WS and which is a very relevant issue to grant
the decree of the permanent injunction as prayed for by the plaintiff
in the suit.
6. The learned trial court by virtue of the impugned order dated
15.01.2026 at Annexure-8 rejected such prayer on the ground that the
plaintiff has not challenged the factum of the adoption as pleaded by
the Defendant No.1 in his written statement and that the suit has been
filed only for grant of decree of permanent injunction or mandatory
injunction against the Defendant directing them to restore the diesel
and petrol supply pump and to reinstall the same over the suit land
and not to interfere if and when the plaintiff goes over the suit land
and not to interfere in the control & management of the petrol pump
by the plaintiff. On a perusal of the rejection order dated 12.12.2025,
this Court observes that the prayer for framing of an additional issue
has been rejected on the ground that the plaintiff has not challenged
the factum of adoption pleaded by the Defendant No.1.
7. While the matter stood thus, the plaintiff filed an application
seeking review of order dated 12.12.2025 under Order 47 Rule 1
CPC read with Section 151. The learned trial court by virtue of the
impugned order dated 15.01.2026 passed in the abovenoted suit again
rejected the review petition. Being aggrieved by such rejection of his
review petition, the Petitioner calls in question the validity and
legality of the order dated 15.01.2026 along with the order dated
12.12.2025 at Annexure-8 & 5 respectively.
8. In course of argument, learned Senior Counsel appearing for
the Petitioners stated before this Court that the application of the
Petitioners for framing of an additional issue has been rejected only
on the ground that the Petitioners have not challenged the factum of
adoption as pleaded by the Defendant No.1 in his WS. He further
contended that although the plaintiff has denied that the Defendant
No.1 has no connection with the plaintiff he had not taken any
specific plea challenging the factum of adoption. He further
contended that factum of adoption was raised for the first time by the
Defendant No.1 in his WS. Thus, there was no scope on the part of
the plaintiff to challenge the same. However, considering the
relevance of the ground taken in the WS by the Defendant No.1,
learned counsel for the Petitioner further contended that the same is
required to be heard and to be adjudicated in the present suit for
permanent injunction and passed an effective decree in favour of the
plaintiff.
9. Accordingly, the learned Senior Counsel for the Petitioners
emphatically argued that the issue with regard to the adoption of the
Defendant No.1 by late Smt. Pana Devi is a valid and relevant issue
which is required to be addressed before considering the prayer of the
plaintiff in the suit for grant of a decree of permanent injunction. In
view of the aforesaid position, the learned counsel for the Petitioner
contended that the impugned rejection order at Annexures-5 & 8
rejecting the prayer of the Petitioners to frame an additional issue
with regard to the adoption of the Defendant No.1 is highly illegal
and arbitrary.
10. Learned counsel for the Petitioners, drawing attention of this
Court to the provisions contained in Order 14 Rule 5 of the CPC,
stated before this Court that such provision in the Civil Procedure
Code confers ample powers to the Court to amend the issue or frame
additional issues at any time before passing a decree on such terms as
it thinks fit. Though, the only condition that has been laid down in
Rule 5 Order 14 is that all such amendments or additional issues are
required to be verified as to whether the same enables the Court in
determining the real matters in controversy between the parties. Such
provision also confers power on the learned trial court to strike out
any issue if the same is found to be wrongly framed or introduced at
any stage before passing of a decree. In the aforesaid context, learned
Senior Counsel for the Petitioners referred to the judgment of this
Court reported in AIR 1971 OLR 191.
11. On a careful consideration of the submissions made by learned
Senior Counsel for the Petitioners and on a critical analysis of the
factual background of the present case, further on a close scrutiny of
the legal provision involved in the present application, this Court
found that the Defendant No.1 raised the issue with regard to the
adoption in his written statement. It is not disputed that the issue of
adoption will have a substantial bearing on the outcome of the suit
and that the same is relevant to determine the matters in controversy
between the parties before passing a decree of permanent injunction.
On perusal of the impugned order at Annexures-5 & 8 this Court
observes that the learned trial court has rejected the prayer of the
Petitioners by passing a speaking and reasoned order.
12. On a critical analysis of the impugned orders, this Court found
that the learned trial court has rejected the application filed by the
Petitioners principally on the ground that the factum of adoption was
not challenged by the plaintiff. At this stage, this Court would like to
observe that such a plea of adoption having been raised in the written
statement by the Defendant No.1, the same could not have been
challenged or pleaded in the plaint by the plaintiff. However, the
Court is bound to consider all the issues involved in the suit and to
pass a composite judgment taking into consideration the real issue in
controversy between the parties. It is also not disputed that in view of
the provisions contained under Order 14 Rule 5, the trial court shall
have the liberty to frame or amend the issues at any stage of the suit
before passing a decree.
13. In view of the aforesaid analysis of fact as well as the legal
position, further keeping in view the provisions contained under
Order 14 Rule 5, this Court deems it proper to dispose of the CMP
application by directing the learned trial court to have a relook at the
grievance of the Petitioners with regard to framing of an issue
regarding adoption of the Defendant No.1, before passing the final
decree. It is further made clear that after evidence is laid from both
sides, the learned trial court, at the stage of argument or before
passing the decree, shall reconsider the grievance of the Petitioners
with regard to framing of an additional issue with regard to the
adoption. Accordingly, the Petitioners are granted liberty to bring up
the plea for framing of an additional issue to the notice of the trial
court at the time of final hearing of the suit. In such eventuality, the
learned trial court shall address such grievance of the Petitioners by
passing a speaking order, keeping in view the provision contained
under Order 14 Rule 5 of the CPC and shall dispose of such
application of the Petitioners before passing of the final decree.
14. With the aforesaid observations and directions, the CMP
application stands disposed of.
( A.K. Mohapatra )
Judge
Rubi
