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2009 DIGILAW 1138 (MP)

Narendra Kumar Jain v. Vimal Chand Jain

2009-09-16

A.M.SAPRE, S.K.SETH

body2009
JUDGMENT Shri V. K. Dubey, learned counsel for the petitioner. 2. Shri A. K. Sethi, learned senior counsel with Shri Harish Joshi, Adv. for the respondents. 3. They are heard. 4. By filing this writ petition under Article 227 of the Constitution of India, the defendant seeks to challenge the interim order dated 22-10-2008 passed by VIIth Additional District Judge, Indore in Civil Suit No. 47-A/2004. 5. By the impugned order, learned trial Judge was pleased to allow the application made by the plaintiff under Order VI, Rule 16 of Civil Procedure Code thereby directing the defendant to delete the pleadings in Paragraph 2 of the written statement as being unnecessary for adjudication of the controversy raised in the suit. By the same order, learned trial Judge was pleased to allow the application made by the plaintiff under Order XIV Rule 5 of Civil Procedure Code and directed deletion of the issue already framed by the trial Court on the basis of pleadings made by the parties, 6. So the question that arise's for consideration is whether the trial Judge was justified in allowing the applications made by the plaintiff referred supra. 7. Having heard learned counsel for the parties and on perusal of the record, we are inclined to allow this writ petition and set aside the order impugned in this writ petition. In our opinion, learned trial Judge was not justified in allowing both the applications made by the plaintiff. 8. So far as the application made under Order VI Rule 16 of Civil Procedure Code is concerned, we have perused the pleadings made by the defendant in the written statement. In our view, the proper course open for the trial Court was to answer the issue already framed on the basis of those pleadings rather them to direct their deletion from the pleadings as being unnecessary. It is always desirable to answer the issue raised in the pleadings on merits by framing issues rather than to direct, the pleadings itself to be deleted from the pleadings without appreciating the evidence adduced thereon. In the facts of this case, the pleadings and the issue involved was not such which could be said to be unnecessary. 9. It is always desirable to answer the issue raised in the pleadings on merits by framing issues rather than to direct, the pleadings itself to be deleted from the pleadings without appreciating the evidence adduced thereon. In the facts of this case, the pleadings and the issue involved was not such which could be said to be unnecessary. 9. Accordingly and in view of the aforesaid discussion, we are not inclined to uphold the reasoning and conclusion arrived at by the trial Court while allowing the application made by the plaintiff under Order VI Rule 16 of Civil Procedure Code. As a consequence, we dismiss the application of plaintiff made under Order VI Rule 16 ibid as being misconceived. As a result, the pleadings already made in Paragraph 2 in the written statement would remain as it is in the written statement. 10. Coming now to the other application made by the plaintiff under Order XIV, Rule 5 of Civil Procedure Code, in our view, this application was consequential in nature. Since the trial Court allowed the application made by the plaintiff under Order VI, Rule 16 of Civil Procedure Code, and, therefore, it proceeded to allow the application made by the plaintiff under Order XIV, Rule 5 of Civil Procedure Code and deleted the issue framed on such pleadings. Since, we have dismissed the application under Order VI Rule 16, and in consequence, the application made by the plaintiff under Order XIV Rule 5 ibid also deserves to be dismissed. As a result, the application made by the plaintiff under Order XIV, Rule 5 of Civil Procedure Code is also dismissed. 11. Accordingly and in view of the aforesaid discussion, the pleadings made by the parties particularly by the defendant so also the issues already framed on the basis of those pleadings would remain for being tried in the suit on merits. The trial Court is directed to allow the parties to adduce evidence in support of their respective pleadings keeping in view the issues framed and thereafter record its finding on appreciating the evidence and accordingly answer all issues framed in accordance with law. 12. Accordingly and in view of the aforesaid discussion, the petition succeeds and is hereby allowed and the impugned order is set aside. 12. Accordingly and in view of the aforesaid discussion, the petition succeeds and is hereby allowed and the impugned order is set aside. As a result, the interim stay granted on 25-2-2009 is recalled and the trial Court is directed to decide the suit on merits within a period of six months from the date of appearance of the parties. The parties will appear before the trial Court on 12-10-2009 and produce certified copy of this order to enable the trial Court to proceed in the matter. No cost. C. C. as per rules. Petition allowed.